Bill C-337 (Historical)

Judicial Accountability through Sexual Assault Law Training Act

An Act to amend the Judges Act and the Criminal Code (sexual assault)

This enactment amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive education in respect of matters related to sexual assault law and social context. It also requires the Canadian Judicial Council to report on continuing education seminars in matters related to sexual assault law. Furthermore, it amends the Criminal Code to require that reasons provided by a judge in sexual assault decisions be entered in the record of the proceedings or be in writing.

[Stephen Zaluski]

I'll just follow up briefly to say, as the committee has been discussing with previous witnesses and with the minister, that the question is finding the right balance between the judicial independence principle and the encouragement that the government is trying to ensure through the legislation it's bringing forward.

The first important change is the difference between applying the legislation to sitting judges, as it would have originally, as opposed to candidates for judicial appointments. Again, that's clearly designed to recognize the judicial control over judicial education for sitting judges, moving it to an undertaking as opposed to.... That change that was moved in the Senate, the government is now supporting as reflecting a better balance.

Likewise, on the reporting requirement in terms of the level of detail, originally in Bill C-337 there was discussion of the number of sexual assault cases in particular that had been heard by judges who hadn't undergone the training and so on. There was a sense in the evidence from witnesses that this could be perceived as targeting members of the judiciary, so it's moving to a softer reporting requirement in the sense of not being seen to potentially single out particular courts or particular judges. Reporting on quantum numbers was a more appropriate approach for striking an appropriate balance.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair, and thank you, Minister, for appearing.

We know from recent decisions there are discredited myths and stereotypes that have been used, and thus we see the necessity of Bill C-5. Complainants of sexual assault are also facing inadequate social supports. They have inadequate information about the core process, and they're often confronted with a system that ignores their wishes and their complaints. Bill C-5, by itself, is not going to solve all these problem, and I hope your government and your provincial colleagues are recognizing the systemic issues that also need to be certainly addressed within the supports.

I have a question about the differences between Bill C-5 and Bill C-337. Bill C-337 went through the House of Commons with unanimous consent. Your department—and I know you weren't the minister at the time—at the time gave its consent to Bill C-337 going through. It did come with some amendments in the Senate. Bill C-5 more closely represents the version of the bill that made it through the Senate's legal and constitutional affairs committee.

There are some noticeable parts that are different. Under Bill C-337, judicial appointments would have been required to complete judicial training at the satisfaction of the Commissioner for Federal Judicial Affairs. Bill C-5 now omits this. In the reporting requirement, Bill C-337 included a section where the number of sexual assault cases heard by judges who never participated in seminars would also have to be included in the reports.

Minister, can you explain why these changes made their way into Bill C-5, and what changed in the three years? Your government originally assented to these being in Bill C-337, and now we don't see them in Bill C-5. I'd like you to explain the department's position on this.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Madam Chair.

Thank you all for being here.

I am pleased to be here today to speak to you about Bill C-5, an act to amend the Judges Act and the Criminal Code.

Bill C-5 proposes amendments ensuring all newly appointed provincial and territorial superior court judges participate in continuing education in sexual assault law and social context. Further, it would require the Canadian Judicial Council to report on the participation of all sitting superior court judges in sexual assault law education. Finally, the bill would also require judges to provide reasons in writing or on the record for decisions in sexual assault matters.

The underlying objective of Bill C-5 is to enhance public confidence and, in particular, the confidence and trust of survivors of sexual assault that the criminal justice system will treat them fairly. It is to reassure them that, when they do come forward, they will be treated with dignity and respect by judges who have the knowledge, skills and sensitivity to correctly apply what is a very complex and nuanced area of the law.

The bill serves as an example of parliamentary collaboration. We have our former colleague and previous Conservative Party leader, the Honourable Rona Ambrose, to thank for this. I want to start by recognizing her initiative on this critical issue.

Ms. Ambrose's private member's bill, Bill C-337, started the conversation for the need for judicial training in the area of sexual assault law and the imperative for elected officials to do what they can do to support this. Bill C-5 was informed and inspired by Bill C-337.

The criminal justice system has long faced challenges in responding to sexual assault in Canada. Much progress has been made by both our government and previous governments in bringing forward reforms aimed at enhancing the equality, privacy and security rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system. These reforms have, at the same time, balanced the rights of the accused in a manner consistent with the relevant Supreme Court of Canada jurisprudence.

However, despite the robustness of our legal framework in this area, there are still extremely low rates of reports, charges and convictions in sexual assault cases. One of the main reasons for this is that victims of sexual assault tend to fear that they will not be believed, and that they will be humiliated or singled out. These fears are reinforced by some cases reported in the media, where judges or other actors in the justice system actually do so. These cases have seriously undermined the confidence of Canadians in our justice system.

Bill C-5 aims to increase public confidence and trust in the ability of our criminal justice system to hear cases in a manner that is fair, respectful, treats people with dignity, and above all, is in accordance with the law that has been carefully developed to ensure this.

Judicial independence is critical to public confidence and a core constitutional principle. Judicial independence requires judicial control over the training and education of judges. A bill that seeks to enhance public confidence in the justice system cannot achieve its goal if at the same time it undermines public confidence in judicial independence.

The bill before us includes the amendments proposed to Bill C-337 by the Standing Senate Committee on Legal and Constitutional Affairs. These amendments were designed to respond to concerns expressed by the judiciary and other stakeholders that the original bill went beyond the limits of what judicial independence permits. The proposed amendments made the necessary adjustments to the bill, while respecting its underlying objectives.

Canada is fortunate to have one of the most robustly independent, professionally competent and highly regarded judiciaries in the world. I know members have just heard about the work of the Canadian Judicial Council and the National Judicial Institute with regard to their internationally recognized work on judicial education.

This bill in no way targets or undermines the credibility and respect our superior court judiciary rightly deserves; rather, it seeks to balance the legitimate need to enhance public confidence while carefully preserving the judiciary's ability to control judicial education.

I would now like to turn to the key elements of the bill.

First, the bill would amend the Judges Act to establish a new condition of appointment as a judge of a superior court. Under the bill, to be eligible for such an appointment, candidates would be required to commit to undertake, if appointed, training on sexual assault law and the social context in which it occurs.

These changes ensure that the government will know that the candidates it appoints are committed to training. The public can be assured that all newly appointed judges will have received such training and that judicial independence is respected, as it will not impose training on judges currently in office.

Second, the bill would amend the Judges Act to require that the sexual assault training established by the CJC be developed after consultation with survivors of sexual assault, the groups that support them, or with other groups and individuals that the council considers appropriate. The requirement to consult is intended to ensure that judicial education will be balanced and informed by the experiences of individuals affected. It is left up to the council to determine who precisely it consults and to determine the content of the training, to respect the constitutional principle of judicial independence.

Bill C-5 requires the Canadian Judicial Council to provide to the minister, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and on the number of judges attending. This measure is intended to enhance accountability in the education of sitting judges for sexual assault law and act as an incentive to encourage the participation of current superior court judges in sexual assault law education.

The last item in the bill consists of amendments to the Criminal Code. They are intended to ensure that decisions in sexual assault cases are not influenced by myths and stereotypes about sexual assault victims and how they should behave. The Supreme Court of Canada has made it clear that these myths and stereotypes distort the court's truth-seeking function.

Canadians and victims of sexual assault have a right to know that the strong laws relating to sexual assault that have been put in place in Canada are being properly applied in court decisions. It is for this reason that Bill C-5 would require judges to provide, in writing or on the record of the proceedings, reasons for their decisions in sexual assault cases. This provision would help to prevent misapplication of the sexual assault laws and would contribute to greater transparency in judicial decisions in sexual assault cases, as recorded and written decisions can be reviewed.

It was also suggested that the bill does not address the real problem, which is the decisions made by provincially and territorially appointed judges. That is true to some extent. The fact is that over 80% of sexual assault cases are heard in provincial and territorial courts. The Parliament of Canada has no authority to legislate in relation to provincially or territorially appointed judges. As a result, it cannot directly implement change where it is most needed. Nevertheless, this does not prevent Parliament or other stakeholders from doing what they can to ensure that our justice system is fair and responsive.

The bill serves as a clear call to governments and the judiciary in the provinces and territories to take a careful look at their own legislative framework and suite of policies and programs and consider whether there are additional measures that can be taken to address the same concerns in their own relative jurisdictions. Following Ms. Ambrose's introduction of the former Bill C-337, a number of jurisdictions followed suit and did just that. At least one province, Prince Edward Island, enacted similar legislation. I understand that Saskatchewan and others are carefully considering policy and legislative responses.

I have sent a letter to my provincial and territorial colleagues outlining the initiatives in Bill C-5 in the hopes that all will follow suit, and I've instructed the Department of Justice Canada officials to explore options for increased availability of training for provincially and territorially appointed judges. Our government has committed significant resources to support the availability of enhanced judicial training. In budget 2017, the Canadian Judicial Council was provided with $2.7 million over five years and half a million per year thereafter to ensure that more judges have access to professional development, with a greater focus on gender and culturally sensitive training.

As I already noted, an important objective of Bill C-5 is to restore the confidence of the public and survivors in the ability of the criminal justice system to hear sexual assault cases in a manner that is fair and dignified and respects the statutory framework that Parliament has set out. Bill C-5 will send a message to all Canadians, and survivors of sexual assault in particular, that Parliament is firmly committed and prepared to act to ensure a justice system that all Canadians can trust, especially the most vulnerable.

But action must happen at all levels of government. It is my hope that Bill C-5 will be a catalyst for all jurisdictions and judiciaries in Canada to consider what measures can be taken that go beyond the symbolic and will result in meaningful and sustainable changes to the manner in which people are treated by the criminal justice system.

That concludes my formal remarks. I will of course be pleased to answer any questions committee members may have.

Thank you.

[Adèle Kent]

Absolutely. The course I talked about, called “Judging in Your First Five Years: Criminal Law”, was created in response—I won't say completely, but partially—to Bill C-337. It is now a mandatory course for newer appointed judges. That has changed as a result of the CJC policy and the program we offer.

The ever-growing suite of videocasts on sexual assault trials that I talked about is new and available to all judges, including provincially appointed judges because it's digitally transmitted.

It's fair to say that all of the courts we work with have done programs in sexual assault cases. Certainly we've seen that happen in the past three years. There is attention being given to the issues that have been raised as part of this discussion.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Justice Kent, you appeared before the status of women committee in 2017 when Bill C-337 was appearing, and I've gone over the witness testimony. That was nearly three years ago. Bill C-337, for a variety of reasons, unfortunately did not become law in the 42nd Parliament, but here we are, trying again.

It's been nearly three years since you gave your testimony on that bill, and here you are again. Can you maybe explain to the committee whether, in the three years that have passed, there have been any noticeable changes in the style and content of training for judges?

[Adèle Kent]

Let me start by telling you about one of the obligations that I think the NJI has. The Supreme Court of Canada has made quite clear to judges in Canada that they must understand the context of the people in their courtroom. One of the most recent examples was the witness who wanted to testify in a sexual assault case wearing her religious garb covering part of her face, and the Supreme Court said you have to balance her rights against the accused's rights in looking at a number of situations.

I see the NJI's role as ensuring that we have consultations with the community. When the first bill was introduced, Bill C-337 in the last Parliament, I had hours of consultations with groups that worked with victims and survivors of sexual assault, talking to them. We now have one of our videocasts where we have three representatives of groups that work with vulnerable witnesses talk about the experiences of those people in the courtroom, their experiences in the community, their experiences as survivors of sexual assault. I see that as one of the ways we ensure that we also respond to what you're hearing in the community.

[The Chair, Conservative, Karen Vecchio]

We'll make sure that information is relayed to the department so that as we're going through these briefings it is also discussed. I think we had one bill in the 42nd Parliament, Bill C-337, but there are also opportunities for us to do some incredible studies.

One of the things we've started discussing is getting those motions so we can start getting our work done. This does put a lot of stress on the staff of this committee, but I know we would like to get started. We are already a couple of months in, so let's get the work done.

After discussion with all four parties at this table, we talked about trying to get motions in by tomorrow evening, in both French and English. I see it says in here four o'clock. I will ask the clerk whether there is any opportunity to extend that. I know the Bloc is working on additional motions. Is there a way we can extend that until later on in the evening?

Lindsay, you look concerned.

Judges Act

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the member opposite for his contribution to the discussion and for the expertise that he brings to bear on it, given his past involvement in the previous Parliament and the study of Bill C-337.

I concur wholeheartedly that constitutional infirmities were pointed out in the previous incarnation of this bill, through the hard work of people in this chamber and also in the Senate. In particular, Senator Dalphond worked very closely with the judiciary on language that would be acceptable, in terms of not encroaching upon that sacrosanct principle of constitutional independence.

I believe we have landed in the right place in formalizing the requirement to be sensitized to these issues but not traversing the line, which would be to actually influence the decision-making that is being done by particular judges.

I also observe wholeheartedly the point he has made about indigenous reconciliation and the TRC's calls to action. I wanted to ask him about the social context amendment that was made at the status of women committee, and how he feels that plays into that sensitization of the judiciary that is so required in this context.

Can he flesh out his opinions on that amendment?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, I appreciate the House's granting me that privilege.

I want to start my speech on Bill C-5 by acknowledging the incredibly important role that judges play in our justice system. These are men and women who are put in very difficult positions. They have to weigh incredible amounts of evidence before them and make judgments as to whether beyond a reasonable doubt a person is guilty of the crime that the Crown is putting forward as an argument.

Judges know that their decisions one way or the other are going to have life-altering impacts, either on the accused or on the person who brought the complaint before the justice system. The debate today should not diminish the important role that judges play in our society.

I also want to take time to acknowledge the Hon. Rona Ambrose, the previous interim leader of the Conservative Party, for the work that she did in the 42nd Parliament with her private member's bill, Bill C-337.

I am happy to see that the government has brought the substance of that bill forward in this 43rd Parliament as Bill C-5. Judging from the character of the speeches so far, there is unanimous agreement that this bill needs to be passed, perhaps not through all stages as quickly as we would like, but I have a strong feeling that after today's debate the justice committee will be getting to work on this bill in short order.

We are supportive of the intent behind Bill C-5, particularly its intention of ensuring that victims of sexual assault and gender-based violence have confidence in the judicial system.

We know that complainants in sexual assault cases are often provided with inadequate social supports. They receive inadequate information about the court process, and they are often confronted by a system that ignores their wishes.

We should acknowledge that Bill C-5 would not solve those problems. It is an important step, but there is an entire systemic approach we need to take to ensure that complainants of sexual assault are coming to a system that they can have confidence in. That confidence needs to be built, and there is still much work to be done.

We need a systemic review of the judicial system when it comes to sexual assault to stop survivors from being victimized, victim-blamed, not informed and very badly supported by policing and justice systems.

The statistics underline this story. Statistics Canada estimates that only 5% of sexual assaults are reported to the police. We know that one in three women will experience sexual violence in her lifetime. For me that is a particularly personal statistic, given that I am the father of three daughters.

I do not want anyone to become one of those statistics, but that is a fact of life in our society. It is not limited just to women: We know that one in six men will experience sexual violence in his lifetime as well. In 82% of cases, the offender is known to the victim. We know that 28% of Canadians have said that they have experienced workplace sexual assault or violence.

I got to know a transgender person in my riding very well over the previous campaign, and I know the courage it took for him to come forward and be a part of my campaign, and to speak openly about the situation that transgender Canadians face in our country. They face nearly twice as much intimate partner violence in their lifetimes as women do, and that is an area that we definitely need to pay attention to as a society.

I also want to acknowledge that my Conservative friends have raised some concerns as to whether the scope of this bill could be expanded to include other areas that fall under federal jurisdiction, most notably the Parole Board of Canada.

We have also seen that the actions of the Immigration and Refugee Board deserve some scrutiny. Perhaps that is something that the justice committee, in its wisdom, can take note of and ask the appropriate questions of the witnesses who come forward to offer their expertise on this particular bill.

I was a member of the 42nd Parliament and remember with great pride, back in 2017 when we were deliberating Bill C-337, that it was great to see the House move a unanimous consent motion in March of that year to get the bill referred to the status of women committee. The status of women committee did some good work on the bill. It had five meetings, heard from 25 witnesses and reported that bill back to the House with some slight amendments.

This is to assure members of the House that the hard work on this bill has been done. We have a lot of witness testimony in the record, and I hope the testimony heard at the status of women committee back in 2017 will inform the justice committee and that we can take note of that when the justice committee is doing its work.

This bill seeks to correct the problems I have noted through rearticulation to judicial candidates on the current standing of sexual assault laws, namely the principles of consent, conduct of sexual assault proceedings, and education regarding myths and stereotypes of sexual assault complainants through training seminars.

That is because we have seen a record, through the actions of various judges, that this training is sorely needed. We have seen it through their comments during court proceedings and through referrals in their judgments, but we would be mistaken if we were to pinpoint this problem entirely on judges. We know that the police themselves have a lot of work to do and I know they are trying their best to achieve this, but we know from the complaints of victims that this work is ongoing.

The Senate, when it received Bill C-337 through its legal and constitutional affairs committee, did make some amendments. There was a lot of concern regarding the constitutionality of the bill. I understand that the government's version is much closer to, or a wholesale adoption of, what the Senate committee did to Bill C-337.

I know there is this ongoing battle between the legislature, the Parliament of Canada, and our judicial branch. Sometimes they can come into conflict. I know that Michael Spratt, a noted lawyer in the Ottawa region, has written about his concerns with the current bill, but I also know that Professor Emmett Macfarlane has said that Parliament is well within its rights to be legislating in areas such as the Judges Act.

I think this bill does a careful job, as is noted in the charter statement, of doing our best to respect judicial independence. This is really about setting up the training that exists. It is going to be overseen independently of Parliament. We will not have any influence whatsoever on what judges do with this training, because they are still going to be impartial and independent of Parliament when they exercise their judgment and bring forward rulings.

This bill, in particular, passes constitutional muster. I have read the wording of it quite carefully and I think Parliament has a role, as an expression of people's wishes and the changing norms of society, to express its will and make sure that the federal statutes of Canada reflect the changing mood of our country.

I would like to offer my congratulations to the government and all members for the unanimity that we are showing in the proceedings today. I think, though, that when we are looking at other issues plaguing Canada, particularly with respect to aboriginal rights, we still see a lot of systemic racism and very little understanding of what aboriginal rights and title mean. Sometimes this can be reflected in our federal court system.

In closing, my one offer to the government is that it look at the Truth and Reconciliation Commission's calls to action, particularly number 27, to see if this kind of training might also be mandated for judges and other parts of the justice system that fall under federal jurisdiction.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Speaker, I completely agree with my colleague from Saanich—Gulf Islands.

Members will recall that, just recently—last week if memory serves—the NDP moved a motion to pass this bill quickly, and we voted in favour of that motion.

For some reason I did not quite understand, our Conservative colleagues did not support it. I believe they wanted to amend it. I will not get into the details because I was not privy to those discussions, but we completely agree that Bill C-5 must not suffer the same fate as Bill C-337, which languished in the Senate and died on the Order Paper.

We are hoping for swift passage of Bill C-5.

[Jag Sahota, Conservative, Calgary Skyview, AB]

Madam Speaker, I am honoured to stand in this place to deliver my maiden speech on behalf of my constituents in Calgary Skyview. Being elected as their representative is a very humbling experience and I am very grateful for this opportunity. I have lived most of my life in Calgary and I cannot think of a better place to grow up. We are so fortunate for our rich, diverse communities that thrive on hard work and a true sense of belonging to Canada.

Throughout my campaign, I met many of my constituents to learn from them how best I could help make their life easier as their member of Parliament. Most notably, I met a young woman in my riding who said to me, “I have never seen anyone who looks like me do what you are doing. I want to go to school and do what you do.” This sentiment meant a lot to me. What she saw was the first Sikh female to be elected in the House of Commons from Alberta. Other constituents would say “our daughters are looking up to you”.

I am proud to stand here today to represent not just those young women in my riding, but anyone who has dreamed of a life in service and of being here. I began imagining my journey to this place when I was really young. I would watch Amnesty International and my heart went out to those people. I would sit there and cry. Their stories moved me. I decided then I would practise law. Being a lawyer has been a tremendous honour for me. It is something I am very passionate about.

This is why this legislation we are debating today is very important to me as a lawyer, as a woman, and now as the deputy shadow cabinet minister for women and gender equality. I want to thank Ms. Ambrose for tabling this important legislation in the previous Parliament and for her dedication to this crucial issue.

Her bill, Bill C-337, received widespread support from parliamentarians and stakeholders. I am encouraged to see it moving forward. I am also pleased to see it as one of our commitments in our platform during the campaign.

Similar to Bill C-337, the bill we are debating today, Bill C-5, adds new eligibility for lawyers seeking appointment to the judiciary to require the completion of a recent and comprehensive education in sexual assault law as well as social context education. It requires the Canadian Judicial Council to submit an annual report to Parliament regarding the details on seminars offered on matters relating to sexual assault law and the number of judges attending. It does this while still maintaining the balance between judiciary independence and a fair criminal justice system, which is very important to me and to all Canadians.

The rationale for the need for the bill is all too familiar, given the recent spotlight on the treatment of sexual assault victims during trial. Sadly, this is certainly not something that is new. Let us explore the current state as it stands now. There is piecemeal training and education available in certain jurisdictions, but it is not mandatory.

We saw in 2016, a judge was found to have relied on myths about the expected behaviour of a victim of sexual abuse. That case was overturned on appeal for obvious reasons. We have seen instances of judges and the use of insensitive language when referring to victims, which can further lead to stigma.

In 2019, there were nearly a dozen cases going through Canada's court system that shed light on how judges continue to rely on myths and stereotypes when informing their decisions on sexual assault cases. Here we are, still seeing similar misinformation about the experience of sexual assault victims or victims of abuse, which can lead to poor decisions and, as we have seen, possible miscarriages of justice, sometimes resulting in new trials.

Retrials can be incredibly painful for the complainants, potentially further revictimizing them. The way victims are treated during their court proceedings as well as in the public eye we know is a major hindrance to reporting the crime in the first place. Victims witness how other sexual assault victims are treated in the justice system and are concerned that if they come forward they will be treated in the same way.

We know that sexual assault is one of the most under-reported crimes in Canada. Of reported cases, only 12% result in a criminal conviction within six years, compared to 23% of physical assaults, as reported by Statistics Canada. We know the reasons for under-reporting include shame, guilt and stigma of sexual victimization. Victims also report the belief that they would not see a positive outcome in the justice system. This simply cannot stand.

What can we do? The best way to prevent this kind of sentiment is through education and training. The path forward that this legislation sets, similar to Bill C-337, allows for more confidence in the criminal justice system by ensuring lawyers who are appointed to the bench are trained and educated in the very specific type of case.

The future state, with this bill passed, is the hope that with education and training, the stories we have once heard of victims made to feel “less than” will not be repeated. This legislation is intended to help reduce the stigma of coming forward, of reporting the crimes and seeing justice prevail for the victims.

The hope is that with education and training, the victims of sexual assault are treated with respect and avoid, at all costs, being revictimized, which can be incredibly traumatizing for the individual.

As Ms. Ambrose said during her testimony before the status of women committee, “Really...for me it's about building confidence. Women do not have confidence in our justice system when it comes to sexual assault law.”

This has to change if we are going to see an increase in sexual assaults being reported and convicted. This piece of legislation will bring us one step closer to eliminating barriers and giving victims of sexual assault more confidence to come forward.

Unfortunately, as we know, it is not just with the justice system where we see these types of myths and misunderstanding. The recent tragic death of a young woman in Quebec sheds a light on the broad scope of this issue. Marylène Levesque was killed at the hands of a convicted murderer, who had a history of domestic violence and was granted day parole.

At a hearing into the offender's previous request for full parole, the board heard from his parole officer that while living in a halfway house, he had been allowed to have his sexual needs met. How was a man with a history of violence against women granted permission to have his sexual needs met?

That is why, in light of this horrific crime, we would like to explore studying an amendment to this bill to capture parole officers and parole board members in this legislation in the hopes that something like this does not happen again.

I look forward to further study on this potential amendment and debate on this piece of legislation. I hope it garners the same support in the House as Bill C-337 did. I hope this bill passes quickly as this will only move us forward as a society and help grow confidence in our justice system.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, I appreciate the parliamentary secretary's speech, and I too would like to acknowledge the work that was done by the Hon. Rona Ambrose in the previous Parliament and the work that this House did together, particularly at the status of women committee too, to get that previous bill, Bill C-337, to the Senate.

I am proud to indicate that the NDP will be supporting this bill to go forward to committee, but I have a number of questions for the parliamentary secretary. We know that often complainants in sexual assault cases are provided inadequate social supports and inadequate information about the court process, and they are often confronted with a system that completely ignores their wishes.

These are not problems that a bill can solve. While Bill C-5 is important, I would like to know how the federal government, acting in a leadership role with all the provinces, is going to move to address these issues.

My second question is with regard to the TRC's call to action number 27, which recommends that lawyers receive extensive training on first nations indigenous issues, particularly with the United Nations Declaration on the Rights of Indigenous Peoples, as well as systemic racism, which we are now seeing all across Canada. I wonder what the government may do to require training for judges to bring their competency up in those particular areas.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak this afternoon in support of Bill C-5, an act to amend the Judges Act and the Criminal Code of Canada. The bill is premised on the conviction that when survivors of sexual assault appear before our courts, they have the right to be treated with dignity and respect and to be assured that the law of sexual assault is being faithfully applied. There is no room for court decisions to be tainted by harmful myths and stereotypes of how survivors of sexual assault ought to behave. The determination to tackle this problem is deeply held by this government. However, I know it is also shared by parliamentarians from all regions of the country and all political stripes.

For far too long, victims of sexual assault have had to deal with a justice system that does not treat them with the dignity they deserve.

Many victims of sexual assault decide not to file a complaint because they are afraid of being mistreated and humiliated. That is why most sexual assaults committed in Canada are not reported to the police.

This is not an issue that is easy to resolve. Parliament alone cannot do it. Improving the way the justice system treats victims of sexual assault requires the mobilization of all levels of government and many stakeholders for broad action. In addition, all members of Canadian society have a shared responsibility to challenge and counter the myths, stereotypes and attitudes that have a pernicious effect on our justice system.

In this regard, education and information play a critical role. I applaud the extraordinary work that many organizations and individuals right around Canada are doing tirelessly to this end. However, Parliament has its own responsibilities. As parliamentarians, we can and we must take action. Canadians need to know that their elected representatives in this chamber are resolutely working toward a criminal justice system that all Canadians can trust and turn to, especially those who are the most vulnerable.

To this end, this bill seeks to ensure that superior court judges have the awareness, skills and knowledge to handle sexual assault cases in a manner that is fair to the parties, that is free from myths and stereotypes and that treats survivors with utmost dignity.

The bill also promotes rigour and transparency by requiring that judges provide reasons for their decisions in sexual assault proceedings and that these reasons be set out in writing or in the record of the proceedings.

I would like to acknowledge the remarkable leadership on this matter by the Hon. Rona Ambrose, the former interim leader of the Conservative Party of Canada, in the last Parliament. In the previous Parliament, Ms. Ambrose introduced Bill C-337, the predecessor to the very bill before us today.

As we will recall, Bill C-337 received unanimous support in this very chamber, strengthened by an amendment brought forward by the Standing Committee on the Status of Women, which did excellent work on studying the bill. It worked to amend it to include social context education in the bill. That complementary piece will ensure that judicial training and education includes working to better understand the demographics, the background and the lived experience of the litigants who appear before our courts.

The Senate sent the bill to the Standing Senate Committee on Legal and Constitutional Affairs, which proposed meaningful amendments to address concerns about the bill undermining the independence of the justice system.

Members may recall that many stakeholders and parliamentarians, including the bill's sponsor, applauded the work of the Senate committee to improve the bill in question.

I agree with that view of the committee's amendments. Unfortunately, we were unable to pass the bill before the end of the previous Parliament.

Since the last Parliament, we have seen cross-party support for reviving this important measure. This is evidence of the strong support for the convictions underpinning this important bill, convictions which transcend political parties and partisan interests.

I want to thank all the parties, as well as our colleagues in the other chamber, for their commitment to a collaborative approach to this initiative. Canadians have sent us to this chamber with a clear message that they expect parliamentarians to work together. Our work on the bill is a clear illustration that we are listening and acting accordingly.

The bill places particular emphasis on the judiciary. Our government recognizes the need for education, not only for judges but also for all actors in the justice system. We are working with our provincial and territorial counterparts and justice stakeholders to expand our efforts in this area. However, the focus of the bill before the House today is on judges. To be a judge is to bear an important responsibility.

I want to quote from the Hon. Justice Gonthier, former justice of the Supreme Court of Canada. He said:

The judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy are built, but they are asked to embody them.

Justice Gonthier continued:

...the personal qualities, conduct and image that a judge projects affect those of the judicial system as a whole and, therefore, the confidence that the public places in it.

The confidence of the public in the administration of justice is critical to the underpinning of the bill that is before us.

Given judges' fundamental role, the public has especially high expectations of them. The Canadian Judicial Council put it as follows:

From the time they are considered for appointment to the Bench, and every day thereafter, superior court judges in Canada are expected to be knowledgeable jurists. They are also expected to demonstrate a number of personal attributes including knowledge of social issues, an awareness of changes in social values, humility, fairness, empathy, tolerance, consideration and respect for others. In short, Canadians expect their judges to know the law but also to possess empathy and to recognize and question any past personal attitudes and sympathies that might prevent them from acting fairly.

In order for judges to meet these very high public expectations, relevant judicial education is essential. This education must be continually evolving in order for judges to perform their duties in situations that are constantly changing, that are dynamic. A lot of great work is being done now, but now there is a need to enshrine in legislation that this is an expected requirement going forward. That is why judicial education is a central feature of the bill under consideration before us now, Bill C-5.

Our criminal law has undergone considerable reform over the past three decades to encourage reporting of sexual assaults; to improve the criminal justice system's response to sexualized violence; and to counter discriminatory views of survivors that stem from myths and stereotypes about how a “true victim” is expected to behave. We know that such perceptions, myths and stereotypes have no role in the justice system in 2020, and that is what the bill targets.

As a result, the Criminal Code prohibits all forms of non-consensual sexual activity. It provides a clear definition of consent. It identifies when consent cannot be obtained. It set outs the rules for admissibility of certain types of evidence to deter the introduction of these harmful myths and stereotypes.

I would now like to explain a few of the proposed legislative amendments.

The bill before us is, as I mentioned at the outset, essentially the same as the former Bill C-337, as amended by the Senate.

In order to require newly appointed judges to undergo training on sexual assault law and social context, the bill proposes to amend the Judges Act and to include a new eligibility requirement.

Under this amendment, candidates for employment as a judge of the superior court will be required to make a commitment to undertake this type of training if they are appointed. That is an important caveat. Upon appointment is when the training would take place. This training is to ensure that the courts take into account Canada's extensive law and jurisprudence on sexual assault and information on the social context of litigants, without being influenced by preconceived or erroneous ideas.

The bill would also clarify that seminars established by the Canadian Judicial Council on matters related to sexual assault law must be developed after consultation with groups or individuals the council considers appropriate, including sexual assault survivors and groups supporting them.

In addition, the bill would require the Canadian Judicial Council to provide to the Minister of Justice, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and indicating the number of judges who have been attending. This is intended to enhance accountability in the education of sitting judges on these matters and to act as an incentive to encourage their participation.

Finally, the bill would amend the Criminal Code to require judges to provide reasons for decisions under sexual assault provisions of the Criminal Code. This amendment is intended to enhance the transparency of judicial decisions made in sexual assault proceedings by rendering them accessible, either in writing or on the record of the proceedings, so oral reasons would be sufficient as well.

I want to mention that this proposed amendment to require judges to provide reasons in the determination of sexual assault matters specifically is complementary to three currently existing requirements:

First, the members in the chamber should understand that section 726.2 of the Criminal Code requires judges to provide reasons when they are sentencing decisions.

Second, there is jurisprudence from the Supreme Court in a 2002 decision called Sheppard, which requires judges to provide reasons for their decisions more generally.

Third, subsections 278.8(2) and 278.94(5) of the Criminal Code require judges to provide reasons when determining whether certain types of evidence should be admitted in sexual assault cases.

Under this bill, the obligation to state reasons will be added to the other Criminal Code provisions relating to sexual assault. As a result, all provisions relating to sexual offences will be clear and accessible to the people applying them, thereby reducing the risk of an erroneous application of law by countering the potential influence of myths and stereotypes about victims of sexual assault and their behaviour.

This approach is in line with the Supreme Court of Canada's finding that these myths and stereotypes can undermine the courts' truth-seeking function.

It is also important to note for the purposes of today's debate that the government has already committed significant resources to support the availability of enhanced judicial training in this very area. In the 2017 budget, we provided the Canadian Judicial Council with $2.7 million over five years, and half a million dollars per year thereafter, to ensure that more judges have access to professional development, with a greater focus in particular on gender and culturally sensitive training.

Our government is also actively at work with stakeholders to ensure that appropriate training is available to all of Canada's judiciary; that is, to judges who are not federally appointed. Again, I want to acknowledge in this chamber the leadership and determination of the Hon. Rona Ambrose in making this happen as well.

Next, I want to turn to the important principle of judicial independence. This bill is designed to support that constitutionally entrenched principle. I parenthetically note that in my previous life as a constitutional litigator, I spent considerable time working on this very principle and dealing with this very issue. I am very proud to say today that the bill we are debating in this chamber clearly supports the principle of judicial independence, and importantly the principle that the education of judges should be the responsibility of the judiciary. That is an important feature that is entrenched in this bill.

Whatever measures are taken to ensure that judges have access to sexual assault training and its social context, those measures would be ill-advised if they interfere with judicial independence.

Public trust requires knowing not only that judges have the expertise required to settle the disputes that come before them, but also knowing that they are independent of Parliament, the executive branch and any other group that could try to unduly influence them.

We in Canada are fortunate to have a strong, independent judicial system. We cannot take this independence for granted, and as parliamentarians, we must work to preserve and promote it.

What I can report to this chamber is that Canada's judiciary is strongly committed to ensuring that the best possible education is available to judges. In fact Canada, thankfully, is an internationally respected leader in judicial education and is a trailblazer in social context education in particular.

Let me briefly highlight the important roles of two organizations that oversee the work of judges. The first is the Canadian Judicial Council, which I briefly mentioned earlier, and the second is the National Judicial Institute.

The Canadian Judicial Council is responsible for setting professional development requirements for superior court judges. In its professional development policy, the council requires judges newly appointed to a superior court to complete an education program for new judges, as well as a more general program to be completed within five years of appointment. These programs include sexual assault law and social context education. What we are doing with this bill is making this a formal requirement.

The National Judicial Institute is responsible for the overall coordination of judicial education in Canada. In addition to being a primary education provider, the National Judicial Institute is an internationally recognized leader in judicial education. The institute seeks to integrate substantive law, skills development and awareness of social context in all of its programs.

I want to acknowledge the significant commitment of the Canadian Judicial Council and the National Judicial Institute to ensuring that judges have access to the training they need. We thank them for their full commitment to a justice system that all Canadians can trust, especially those who are most vulnerable.

It is also important to acknowledge in this chamber the important and respectful dialogue between the judicial and legislative branches that the previous bill, Bill C-337, triggered in the last Parliament, which I am confident will continue as the current bill, Bill C-5, is debated and studied. All partners in this dialogue share a strong commitment to a justice system that survivors of sexual assault can trust and that all vulnerable persons can trust, a justice system that treats them with the dignity and respect they so dearly deserve.

It is also important to outline how this bill would work within the context of other government commitments and government actions. Supporting victims and survivors of crime is a priority for our government. This includes working with provinces and territories to provide free legal advice and support to survivors of sexual assault and intimate partner violence. It includes the government's commitment, announced in the Speech from the Throne, to build on the gender-based violence strategy and work with partners to develop a national action plan.

The bill before us represents a major step forward. It gives parliamentarians an opportunity to send a clear message to all Canadian victims of sexual assault that we are not indifferent to their experiences, that courage is an inspiration and that they deserve a justice system that treats them with the utmost dignity and respect.

I know that we all share the same convictions in this regard, which is why I urge all members on both sides of this House to agree to support the very important measures contained in Bill C-5.

[National Chief Perry Bellegarde, Assembly of First Nations]

Thanks, Mr. Chair.

[Witness spoke in Cree]

[English]

To all the distinguished members of the committee, I'm very happy to be here acknowledging you all as friends and relatives. I also acknowledge the Algonquin peoples for hosting this on their ancestral lands. For me, from our AFN, I'm happy to be here.

I want to share some perspectives. I'm very honoured to speak here on behalf of the Assembly of First Nations regarding Bill C-100. I'll also say a few words about the process to negotiate, ratify and implement the Canada-United States-Mexico agreement.

Trade in resources and goods in this land, I always say, began with us, the indigenous peoples. The participation now in 2019 in international trade should not be seen merely as part of history. Going forward, how do we get more involved?

As self-determining peoples, we have interests and rights respecting today's international trade agreements. We've always said that for far too long we have not seen the benefits from international trade flow to our businesses or to our communities as first nations people. These facts should form a part of legal and political frameworks when Canada explores new free trade agreements. I've always said, from a first nations perspective in Canada, that whenever Canada goes out to negotiate or discuss anything from softwood lumber to trees, anything from potash in southern Saskatchewan, to uranium in the north or any oil, coal, or whatever natural resource it is, indigenous peoples should be involved and should be participating, because there's respect or reference that we still have unextinguished aboriginal title and rights to the land and territory and resources. It's a simple fact. So we need to be involved.

When Canada, through Minister Chrystia Freeland, welcomed me to be on the NAFTA advisory committee, it was very important, because to date, indigenous peoples haven't been involved. We also had indigenous officials working as part of the working group. In the end, we'll say that this work resulted in the most inclusive international trade agreement for indigenous peoples to date. It's not perfect, but to date it's the best that we have in Canada.

With the ratification of the Canada-United States-Mexico agreement, we would take a step to making international trade more aware of and more equitable in its treatment of indigenous peoples, and especially for indigenous women entrepreneurs. We still have more work to do.

We believe the Canada-United States-Mexico agreement is a step in the right direction with the new general exception for indigenous rights with respect to inherent and aboriginal and treaty rights. As well, with specific preferences to carve out procurement benefits and other opportunities for indigenous businesses and service providers, there's also a promise of future co-operation to enhance indigenous businesses. As well, importantly, the investor-state dispute settlement process, which was a threat to indigenous people's rights, will be phased out for Canada. This is the groundwork for positive change.

While the Canada-United States-Mexico agreement is a new example of the difference it makes to engage with indigenous peoples at an early stage, there must be increased opportunities for first nations participation not only in international trade negotiations but also in trade missions.

Canada should extend an official role to first nations in negotiations of all international agreements on trade and investments that impact inherent treaty aboriginal rights. This would better reflect the nation-to-nation relationship and the whole-of-government commitment by Canada to implement the United Nations Declaration on the Rights of Indigenous Peoples. In addition, the inclusion of first nations leads to better decisions and better outcomes.

With regard to Bill C-100, what I'm recommending to all the committee members here is that there should be in place a non-derogation clause. It's a safe clause, that nothing in this agreement will affect existing aboriginal treaty rights, which are affirmed in section 35 of Canada's Constitution. I'm making that recommendation as well as that it be interpreted and implemented consistent with those rights in section 35. It's good to have it ratified by Canada, the United States and Mexico on one hand, but each nation-state will come back and do some sort of legislation with the implementation. That's the piece we're looking at making the recommendation on. I'm not advising that we open up the agreement; no, leave it the way it is, but move in tandem with the other two countries to get it ratified. We have to be careful to be not too fast and not too slow, because if one of the three countries doesn't get it ratified, the deal is not going to be implemented.

It's not just that international trade and investment agreements can impact our rights, but also how the agreement is implemented through domestic regulatory and policy matters. That has to be looked at. Once the agreement is ratified, we must work together to realize the economic gains and ensure the provisions related to indigenous peoples in international trade agreements are implemented in a manner that brings greater economic equity to first nations peoples.

The first area where indigenous peoples can see the benefits from this agreement is government procurement. Procurement is always a big thing. Everybody says this should be easy, that it's low-hanging fruit. Canada must move from policies and objectives to mandatory requirements for procuring goods and services from first nations businesses. The Assembly of First Nations is ready to work with Canada to make sure we develop legislation together for social procurement that benefits first nations and other indigenous peoples.

The only other thing I'd like to share here before concluding is there are three or four very important bills we want to see passed before this week is up. Bill C-91 on languages, Bill C-92 on child welfare, and two private members' bills, Bill C-262 and Bill C-337, all need to be passed. If in the event the legislature is called back, those should form the priority. But we're hoping and praying that all MPs, all the leadership here on Parliament Hill, will get behind and pass those pieces of legislation as soon as possible.

That's it, Mr. Chairman. Thank you for the time.

Legislation before the Senate

[Jagmeet Singh, NDP, Burnaby South, BC]

Mr. Speaker, in a moment I will be asking the House for unanimous consent on a motion.

Legislative delays in the Senate have meant that time is running out on important bills that have been passed by the elected members of the House of Commons. That includes the watershed bill to enshrine the UN Declaration on the Rights of Indigenous Peoples into Canadian law; as well as a desperately needed bill to require better training for judges in the country to deal with sexual assault cases.

The time is now to get these bills passed. Therefore, I hope that if you seek it, you will find unanimous consent for the following motion:

That, in the opinion of the House, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, as well as Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), are both critical pieces of legislation that have been duly passed by the House of Commons, and have been in possession of the honourable Senators for many months; that both bills should be passed into law at the earliest opportunity; and that a message be sent to the Senate to acquaint that House accordingly.