Speak out to stamp out violence

Housing and Community Development Minister Kerri Irvin-Ross (right) joined members of Manitoba’s Aboriginal community to launch a new public awareness campaign encouraging Aboriginal men to speak out against domestic violence. Five new posters were unveiled depicting Aboriginal men who are role models for their respective generations speaking against violence against Aboriginal women and girls

April 11, 2013

MANITOBA GOVERNMENT HOSTS SYMPOSIUM ON PREVENTING SEXUAL ASSAULT

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Collective Action Needed to Prevent Sexual Violence: Howard

Members of the UN Women’s Global Safe Cities Initiative will participate in the Manitoba government’s upcoming symposium on preventing sexual violence, Family Services and Labour Minister Jennifer Howard, minister responsible for the status of women, announced today.
The symposium is being held as part of a variety of initiatives to raise awareness about sexual assault during Sexual Assault Awareness Month in April.
“Sexual assault in all its forms is one the most devastating experiences that happens in too many people’s lives and it has long-term impacts for families and communities as well,” said Howard.  “These impacts are becoming even more apparent as technology and social media expand the reach of perpetrators.  This forum will focus on taking collective action to prevent sexual violence.”
Taking Action:  A Symposium on Ending Sexual Violence in Manitobawill take place April 18 at the Winnipeg Convention Centre and input will be used to develop a consultation plan for a sexual assault prevention strategy in Manitoba, the minister said.  The participation of the UN Women’s Global Safe Cities Initiative will be in addition to a variety of local organizations dedicated to ending sexual violence in Manitoba.
“The UN initiative has proven the value of taking action at the local level by improving conditions in more than 15 cities around the world,” said Howard.  “It focuses on sexual assault and harassment, and seeks to improve safety for women and girls through public awareness, encouraging community mobilization and promoting gender equality to end violence against women.”
The Manitoba Status of Women Division is also hosting a series of events throughout the month including sexual assault prevention and awareness programs delivered by Klinic Community Health Centre’s Sexual Assault Crisis Program in Thompson and Portage la Prairie, and an event in The Pas on healthy dating in partnership at the Oscar Lathlin School.
A panel discussion was held this week at the University of Manitoba to discuss Working Together with Men and Boys as Allies to End Sexual Violence.  Panel members included Chris Cvetkovic of the Winnipeg Blue Bombers as well as other local men who spoke about the issue of sexual violence against women.
For more information about events for Sexual Assault Awareness Month, visit www.gov.mb.ca/msw.  For more information about the UN Women Global Safe Cities Initiative, visit: http://saynotoviolence.org/join-say-no/safe-cities-women-and-girls.

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SCC Decision positive for women with disabilities

For Immediate Release


February 10, 2012, Toronto & Montreal - The Supreme Court of Canada released its judgment today in the case of R. v. D.A.I.. The Women's Legal Education and Action Fund (LEAF) and the DisAbled Women's Network Canada (DAWN-RAFH Canada) intervened in the appeal.

"LEAF and DAWN-RAFH Canada welcome the decision as a positive step for women with disabilities and for Canadian society as whole, which is committed to prosecuting sexual abusers who prey on vulnerable women" says DAWN-RAFH Canada President Carmela Hutchison.

"In today's Supreme Court of Canada decision, Chief Justice McLachlin writing for the majority described sexual assault as "an evil" and acknowledged that women with intellectual and other disabilities are targeted for this offence at alarming rates. The Court confirmed the importance of hearing the voices of women with mental disabilities[1] in court. The Court acknowledged that the testimony of women with mental disabilities is essential to stopping sexual abuse and ensuring that sexual offenders are brought to justice" states Joanna Birenbaum, Legal Director of LEAF

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

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

The SCC judgment noted that in the past, people with mental disabilities who are victims of sexual offences "have been frequently precluded from testifying, not on the ground that they could not relate what happened, but on the ground that they lacked the capacity to articulate in abstract terms the difference between the truth and a lie" (SCC Judgment para.66).
Without the evidence of sexual assault complainants before the Court, cases often collapse and sexual offenders are acquitted, effectively permitting "violators to sexually abuse [women with mental disabilities] with impunity" (SCC Judgment para.67).

"Women with intellectual and cognitive disabilities experience staggering rates of sexual assault" explains Hutchison, "we are seen as easy targets. Abusers, who are frequently caregivers, believe that disabled women are powerless to complain or will not be believed even if we do complain. The Supreme Court acknowledged this reality and confirmed that our testimony is essential to any "realistic prospect of prosecution," failing which we become "fair game for those inclined to abuse" (SCC Judgment para.67).

"We are reassured" continues Hutchison, "that the SCC majority recognized that the testimony of women with mental disabilities promotes the truth-seeking function of the criminal process, particularly given the undeniably high rates of sexual assault and the interests of society in the reporting and prosecution of abuse. As the SCC itself said, excluding our evidence would "effectively immunize a category of offenders from criminal responsibility" with devastating harms to the abused women and to society as a whole" (SCC Judgment para.67).

The case involved a woman with an intellectual disability (K.B.) who reported to a teacher that her step-father played "games" with her, which included touching her genitals and breasts. The evidence also revealed that the accused had a photograph of the complainant bare-breasted, stored in a trunk along with another pornographic photograph. The accused alleges that the photograph was taken innocently.

K.B. made a statement to the police and testified at the preliminary inquiry. At trial, her competence to testify was successfully challenged. The Court held that K.B. was unable to adequately explain the meaning of abstract concepts like "truth", "lie" and "promise". For example, she was asked "what do you think about the truth", "what's a promise" and "if you tell big lies will you go to jail". K.B.'s evidence was excluded. The trial proceeded without her evidence. The accused was acquitted.

As a result of the SCC ruling today, the acquittal is set aside and a new trial ordered.

The Supreme Court of Canada decision also notes that the questioning of mentally disabled adults may require "accommodation" or individualized supports so that their evidence is best communicated in court.

"This aspect of the ruling is in-step with international law and other international jurisdictions" explains Birenbaum, "the United Kingdom, for example, is currently far ahead of Canada in terms of providing for witness intermediaries who assist persons with communication and/or mental disabilities in accessing the justice system at all stages, from reporting to police to giving evidence in Court. Creating and supporting a roster of witness intermediaries in Canada is a logical next step for the federal government flowing from this decision."

Hutchison continues that "while the Court did not refer to Canada's international human rights commitments, the decision is consistent with Canada's obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD) and the UN Convention on the Elimination of Discrimination Against Women (CEDAW). Article 13 of CRPD requires Canada to ensure "equal access to justice" and Article 16 of CRPD commits Canada "to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted". Finally, Article 12 of CRPD recognizes that people have the right to supports in order to exercise their legal capacity."

LEAF and DAWN-RAFH's factum and more information can be found at
http://leaf.ca/wordpress/wp-content/uploads/2011/05/2011-R.-vs.DI-Final-Factum.pdf


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For more information, please contact:

Joanna Birenbaum
(LEAF Legal Director)
(416) 595-7170 ext. 223 (office)
(647) 500-3005 (Cell)
j.birenbaum@leaf.ca (e-mail)
http://www.leaf.ca/

LEAF INTERVENES IN R v. N.S. - Sexual Assault Complainant Should Not be Stripped of Niqab

December 7, 2011 - Ottawa: On Thursday, December 8, 2011, the Supreme Court of Canada will hear the appeal of a niqab-wearing sexual assault complainant who was ordered to remove her niqab as a precondition to testifying at the preliminary inquiry of two male family members charged with sexually abusing her as a child.

N.S. is asking the Supreme Court of Canada to affirm her right to testify wearing the niqab.

"Women who have been sexually assaulted should not be shut out of the justice system just because they wear the niqab", says LEAF Legal Director and co-counsel, Joanna Birenbaum.

"The accused are asking the court to forcibly remove a deeply personal article of religious clothing worn by a sexual assault complainant. This demand must be seen in the context of the discriminatory treatment of women who report sexual assault" Birenbaum explains. "The sexual assault preliminary inquiry has a long history of being used to degrade, humiliate, intimidate and re-victimize sexual assault complainants, to get women to drop sex assault charges or discourage them from reporting sex assault in the first place."

Susan Chapman, LEAF co-ounsel, says "niqab-wearing women are already a stigmatized racial minority in Canada, subjected to heightened scrutiny and stereotyping. If niqab-wearing women believe that they will be ordered to remove their niqabs if they seek the protection of the Canadian legal system, will they ever report sexual assault? The message will be that these women can be sexually assaulted with impunity. This is clearly unacceptable."

The Ontario Court of Appeal quashed the lower court order requiring N.S. to remove her niqab, but left open the possibility that N.S. could be ordered to remove her niqab at the preliminary and at trial.

LEAF's Supreme Court factum argues that the preliminary inquiry judge has no jurisdiction to order the removal of the niqab. LEAF further argues that while the trial judge has jurisdiction to order the removal of the niqab, such an extraordinary order would violate the Charter rights of sexual assault complainants and should rarely, if ever, be made.

"The constitutional rights engaged by an order stripping a sexual complainant of her niqab are profound" says Birenbaum. "These rights include: the right to be free from state-imposed psychological trauma, physical and psychological integrity, equality, and a justice system which operates free of discrimination and prejudice."

Chapman explains that "mere access to "demeanor evidence"" (which may include the facial expressions of a witness) is "insufficient to justify the intrusive order requested. Put simply, the accused have no constitutional right to demeanor evidence.   Moreover, demeanor evidence has a proven history of subverting the truth-seeking function of the criminal trial, particularly in the sexual assault and cross-racial contexts. Stereotypes and discriminatory assumptions deeply influence judgments of credibility."

Even the Ontario Court of Appeal recognized the unreliability of demeanor evidence. "The Court of Appeal noted that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial" says Chapman, "The Court recognized that a complainant who normally wears the niqab and is unveiled cannot be expected to "be herself" on the stand."

"LEAF takes no position on the practice of wearing the niqab", says Birenbaum. "LEAF is very concerned, however, that women who wear the niqab are not excluded from basic democratic institutions."

LEAF is also concerned that racist and other stereotypes of Muslims not influence the public discussion of this sexual assault complainant's right to access the justice system and participate in a fair trial.

"Almost all of the focus has been on the impact of the veiled-witness on the rights of the accused. But the disadvantage at trial will almost certainly be experienced by the niqab-wearing woman. In the current political climate in which veiled Muslim women are feared and distrusted, how will the evidence of a niqab-wearing witness be received? A Muslim woman who covers her face in court faces significant prejudices that she is hiding something and cannot be believed."

LEAF's Supreme Court of Canada factum in R. v. N.S. is available at:

http://leaf.ca/wordpress/wp-content/uploads/2011/11/Final_Factum_SCC_R-v-N-S-.pdf

LEAF's Backgrounder on R. v. N.S. and Quebec Bill 94 is available at: http://leaf.ca/wordpress/wp-content/uploads/2011/12/LEAF-Niqab-Backgrounder-May-11-2010.pdf

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For more information, please contact:

Joanna Birenbaum

(LEAF Litigation Director/Co-counsel)

(416) 595-7170 ext. 223 (office) - (647) 500-3005 (cell) - j.birenbaum@leaf.ca (e-mail)

Susan Chapman

(LEAF Co-counsel)

(416) 969-3061 (office) - (416) 509-7121 (cell) - schapman@greenchercover.com (email)

LEAF is a national, non profit organization committed to confront all forms of discrimination through legal action, public education, and law reform to achieve equality for women and girls under the Charter of Rights and Freedoms. For more information, please visit us at www.leaf.ca

LEAF INTERVENES IN
 R. v. N.S.

Sexual Assault Complainant Should Not Be Stripped of Niqab