3 Ways the Canadian Justice System is Failing Women (& How We Address It)

How national women's organizations are tackling three pressing issues.

Why It Matters

As cultural perspectives shift, so do a country's expectations of its governance and systems — so it's not entirely surprising that in July, Canada’s federal government announced nearly $2 million in funding to help advance gender equality in Canada’s justice system. But exactly where is that inequality showing up most, and how are national women’s organizations tackling these issues?

In July, the Government of Canada announced that it would be investing close to $2 million in national women’s organizations to help women in Canada receive more equitable treatment and greater support from the country’s justice system. The funding sounds like a solid step forward, but for many Canadians, there’s a lack of understanding of what goes on in courtrooms and the justice system overall, only highlighted when issues bloom big enough to make it into national news. 

So what exactly is this funding being put towards, and what are the issues it’s tackling?

According to experts from national women’s organizations across the country, there are three concerns that immediately stand out within Canada’s justice system. 

 

The justice system continues to fail sexual assault survivors

In Canada, in 2014, only 5 percent of sexual assaults were actually reported to police. While there are many reasons that survivors may choose not to report assault, three studies carried out with sexual assault survivors by Justice Canada in 2014 found that approximately two-thirds of participants stated that they were “not confident in the police, the court process, or the criminal justice system in general.”

“In the courtroom, [survivors] may face judges whose decisions rest on outdated beliefs or stereotypes about sexual assault,” says Andrea Gunraj, vice president of Public Engagement at the Canadian Women’s Foundation.

Gunraj points out cases that made national news in Canada: in 2014, a judge in Alberta asked a rape complaintant why she didn’t resist by keeping her knees together. In 2017, a Halifax judge acquitted a taxi driver of sexual assault against a passenger who was intoxicated, saying, “Clearly, a drunk can consent.

According to Kat Owens, director of the Feminist Strategic Litigation Project at the Women’s Legal Education and Action Fund — which received funding from the Government of Canada alongside the National Association of Women and the Law — these cases don’t stand alone. 

“These decisions are making their way up to the Supreme Court, and the Supreme Court does a good job — they state what the law is, they say that myths and stereotypes around sexual assault have no place in the courtroom, they recognize the cost of sexual assault,” Owens says. She continues: 

“But what we see is, okay, we get good decisions at the highest appellate level, but that means that the lower courts still aren’t getting it right, and not every case gets appealed to the Supreme Court. And what you end up seeing is other cases where women and those who are bringing sexual violence complaints before the courts are going through unnecessary additional trauma in the court system.”

Two years ago, Bill C-337, which would mandate sexual assault education for judges across Canada, received unanimous support in the House of Commons. But it stalled in the Senate, and had yet to be voted on when Parliament rose for the summer. To make progress on the issue despite the end of the parliamentary session (and an upcoming federal election), the Canadian Women’s Foundation is now asking Canadians to contact their local representatives to request similar legislation for judges at a provincial or territorial level — which would help tackle this first concern locally.

 

The over-criminalization and over-incarceration of Indigenous and racialized women

Indigenous women make up less than 5 percent of Canada’s population, yet they represent 38 percent of women in prison. And according to Owens, the number of Indigenous women in Canadian prisons has only grown over the last decade.

“Between March 2009 and March 2018, the number of Indigenous women admitted to federal custody increased by 60 percent,” Owens says. “There’s a need to recognize that the justice system disproportionately criminalizes and incarcerates Indigenous and racialized women.”

How can we begin to change that dynamic? According to Owens, progress will be made several ways, through litigation and by working towards a justice system that takes into account the lived experiences of those coming before it. Much of the overrepresentation in the criminal justice system comes down to the criminalization of poverty and mental health, with a lack of alternatives to incarceration and few opportunities to be diverted out of the criminal justice system.

 

The justice system needs to look at lived experience

The overrepresentation of Indigenous and racialized women in Canada’s criminal justice system also points to a third concern within Canada’s justice system: the need for a system that takes into account the context and lived experience of individuals who end up in the justice system.

“This is something, I think, that the law particularly struggles with. In the law, there’s this concept of ‘a neutral perspective’ or ‘the reasonable person.’ But the reality is that there isn’t a neutral perspective,” Owens says. “Justice and access look different based on who you are in a given moment, where you live, what particular characteristics you have, and the different intersecting discriminations you face in your life.”

To bring an equality lens to the courtroom, the justice system needs to take into account the lived experience of those coming before them, be made up of a diverse set of Canadians who represent the society they’re a part of, and involve diverse individuals in the law-making process.

Fortunately, progress is being made in this area: as part of the Government of Canada’s recent funding, the National Association of Women and the Law (NAWL) will receive over $980,000 to increase the participation of women in the law-making process — a definite win. And over the last few years, the number of women and minorities in Canada’s judiciary has increased, with women making up over half of all appointments since October 2016.

But there’s still work to do. “There are other intersectional forms of equity to consider as well,” Gunraj told the CBC in May. “For instance, how many of the judges are Indigenous women? Racialized women? Women with disabilities? A judiciary that reflects all communities, in all their diversities, is so critical.”