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.

[The Chair, Conservative, Marilyn Gladu]

Excellent.

Thank you very much to all our witnesses this morning.

We have a brief bit of committee business to take care of that we're going to sandwich here in the middle—three quick items. The first one has to do with the follow up from Bill C-337, namely, a letter that I believe we agreed we would send to the justice minister so she could distribute it to the provinces. There are three comments about the draft, which I think you received. The first one has to do with paragraph 2, where it talks about—

Member for Sturgeon River—Parkland

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Speaker, today we pay tribute to the extraordinary member for Sturgeon River—Parkland and interim leader of the Conservative Party for her service as a member of Parliament, as a minister, and as leader of the official opposition and thank her for the honour, integrity, and passion she has brought to this House over the years.

We learned last night that not only will the member be handing over the reins to a new leader, she will also be stepping down as MP. That news was met with an outpouring of recognition and tremendous gratitude, and rightly so. She will be missed as an MP and as a great leader of the Conservative Party—my personal favourite, for the record.

In less than two weeks, a new Conservative leader will be chosen. We do not know who that will be, but we do know it will not be Kevin O'Leary. I guess for that, at least, we can be thankful.

I thought today I would tell a story that demonstrates why the member for Sturgeon River—Parkland is so widely respected. This House is often filled with passionate debate and disagreement, as it should be. As opposition leaders of often diametrically opposed parties, we frequently have very different perspectives on issues, but sometimes we can find common ground and bypass party differences for the greater good. In March, the leader of the official opposition and I, and ultimately all members of this House, were able to come together and do just that.

A series of shocking decisions showed us once again that our legal system does an abysmal job of addressing cases of sexual assault and protecting the victims. The Halifax ruling made it clear that appropriate sexual assault training for judges was not only necessary, but had become urgent.

The Criminal Code stipulates that no consent is obtained where the complainant is incapable of consenting to the activity. This ruling went completely against the Criminal Code and it became clear that it was necessary to act quickly on this.

The member had introduced legislation, Bill C-337, that would require judges undergo comprehensive training in sexual assault law. I was very impressed with the proposed bill. It is an important step forward for survivors of sexual assault who are struggling in a judicial system that far too often fails them.

It was clear to me that the legislation should receive unanimous support, not only due to the urgency of the problem but also because at that moment in particular, it was critically important that every member of the House come together and say “we believe survivors”.

We reached out to the member and her office and offered to endorse the bill and fast-track it to committee by proposing unanimous consent. That unanimous consent was forthcoming.

It is rare for all leaders of political parties to support each other's legislation and even more rare for leaders to propose unanimous consent for each other's legislation. However, when it comes to how our judicial system handles cases of sexual assault, I am so proud to say that members of the House unanimously agreed to put survivors first.

Quite sincerely, I thank the leader of the official opposition for the tremendous work she did for this bill. I know that this goes back to the hon. member's university days when she took part in a project that looked into how sexual assault complainants were treated in the courts. I know how important this is to her and I am extremely honoured that the House passed the bill yesterday.

I thank the hon. member for being so open to working in a collaborative and non-partisan way. That is what made possible this important accomplishment. I will always be very proud of this moment and I hope she will be as well. I can safely say that the leadership that the hon. member for Sturgeon River—Parkland showed in the House certainly earned her the respect of the entire NDP caucus.

In closing, Catherine and I wish my colleague, the leader of the official opposition, her family and her wonderful spouse, J.P., many years of peace and happiness together.

Judicial Accountability through Sexual Assault Law Training Act

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, in a moment, I am going to propose a unanimous consent motion. It is in relation to Bill C-337, a private member's bill to provide for sexual assault training for judges to prevent any more of the terrible headlines we have seen in this country on how victims of sexual assault might be treated in the courts.

The amendments that have been proposed by the status of women committee include training that is informed by the work of grassroots organizations that protect, serve, and navigate these victims of sexual violence through the court system.

Mr. Speaker, I believe that if you seek it, you will find unanimous for the following motion:

That, notwithstanding any standing order or usual practices of the House,C-337, an act to amend the Judges Act and the Criminal Code (sexual assault), be deemed concurred in at the report stage and deemed read a third time and passed.

Status of Women

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I have the honour to present, in both official languages, the ninth report of the Standing Committee on the Status of Women concerning Bill C-337, an act to amend the Judges Act and the Criminal Code (sexual assault).

The committee has studied the bill and has decided to report the bill back to the House, with amendments.

[Sean Fraser, Liberal, Central Nova, NS]

I do have a proposed amendment, which doesn't have a fancy title like Liberal-3. However, I will provide a copy in writing once I read it for the benefit of the crowd.

Also I believe the French version is available as well, but I handed my copy to another member of the committee. Once I read the English version into the record, I'll share both copies in writing with you and then have a few questions for our department officials.

The new amendment would read that Bill C-337, in clause 5, be amended by replacing lines 21 to 24 on page 3 with the following: “Reasons, 278.92 (1) In proceedings for an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272, or 273, the judge shall provide reasons for a decision that a person is”. As well, it would amend clause 5 by adding, after line 30 on page 3, “Record of reasons”, and this is the key part that differs from the previous iteration, “(2) The reasons shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.”

Then, similar to what we had previously, it says, “Proceedings before a judge, (3) Subsections (1) and (2), apply only in proceedings before a judge without a jury.”

[The Chair, Conservative, Marilyn Gladu]

We're back discussing Bill C-337 on the clause-by-clause.

We're fortunate to have as help for us today from our justice department, Gillian Blackell and Uzma Ihsanullah.

Mr. Fraser, we'll go back to you.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

My proposal is that Bill C-337 be amended by adding after line 18 on page 3 the following new clause:

4.1 The Act is amended by adding the following after section 74:

74.1 The Commissioner shall, within three months after the end of each fiscal year, prepare and publish on the Office of the Commissioner's website a report on the education in sexual assault law described in paragraph 3(b ), including any observations and recommendations that the Commissioner considers appropriate.

[The Chair, Conservative, Marilyn Gladu]

On NDP-3 the ruling for this one is that it's not admissible. Bill C-337 amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive sexual assault education. The amendment seeks to establish an education program for persons who play a role in the administration of criminal justice beyond the one that the bill contemplates for judges. As House of Commons Procedure and Practice, second edition, states on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, this amendment introduces a new concept that is beyond the scope of the bill. Therefore, I am ruling the amendment inadmissible.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

I propose a subamendment to Liberal-1.

Liberal-1 says that Bill C-337, in clause 2, be amended “by replacing line 28 on page 2 with the following”. My subamendment is in proposed subparagraph 3(b)(i), after the words “education in sexual assault law that”. I would insert the following new words, and this is mostly what is written in NDP-1:

has been developed in consultation with sexual assault survivors, as well as with groups and organizations that support them, and that includes

May I speak to that?

[The Chair, Conservative, Marilyn Gladu]

Good morning, ladies and gentlemen. We are pleased to be here today for the clause-by-clause review of Bill C-337, an act to amend the Judges Act and the Criminal Code, regarding sexual assault.

We'll begin our clause-by-clause. Pursuant to Standing Order 75(1), the consideration of the preamble and clause 1, the short title, is postponed.

(On clause 2)

If you refer to the amendments that were sent out, you'll see that there is a Liberal-1 amendment. I want to inform the committee that if Liberal-1 is adopted, then NDP-1 cannot be moved, because there is a line conflict there. Just be aware of that.

Liberal-1 says that Bill C-337, in clause 2, be amended by replacing line 28 on page 2 with the following:

hensive

(i) education in sexual assault law that includes

Also, that clause 2 be amended by replacing line 32 on page 2 with the following:

associated with sexual assault complainants, and

(ii) social context education.

Is there discussion on the amendment?

[Norman Sabourin]

I would just say, Madam Chair, that in the CJC position paper on Bill C-337 we do map out from a quantitative perspective that the CJC intends to publish the title, description, and overview of all education seminars approved by the CJC in the preceding year. We propose to publish the dates and duration of each seminar, and we propose to publish the number of judges who attend each seminar.

On a qualitative basis, I think that to start talking about 22% of sexual assault training would be a grave error, because we are taking a very comprehensive approach to social context education. As Justice Kent has pointed out, you might have a course on evidence that has integrated into it clear objectives of social context education, such as gender-based inequality and the intersectionality of the issues that surround gender-based issues.

[The Chair, Conservative, Marilyn Gladu]

Good morning, colleagues.

We return to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code with respect to sexual assault.

We're happy to have with us again, from the National Judicial Institute, the Honourable Madam Justice Adèle Kent, the executive director.

We also have with us Marc Giroux, Deputy Commissioner at the Office of the Commissioner for Federal Judicial Affairs Canada, and Norman Sabourin, Executive Director and Senior General Counsel at the Canadian Judicial Council.

Welcome.

We'll begin with Ms. Kent for five minutes.

[Chad Kicknosway, Senior Advisor on Justice and Human Rights, Native Women's Association of Canada]

I just want to add that the current Judges Act in section 62 grants the council powers to establish ongoing seminars for existing judiciary. My concern here is that this bill only impacts newly appointed judges. I would suggest incorporating into the current Bill C-337 some sort of transitional provision or some other provision that compels the council to make it a priority that all judges, even the old ones, take the mandatory comprehensive education on sexual assault.

[Lise Martin, Executive Director, Women's Shelters Canada]

Thank you for the invitation and the opportunity to share our thoughts on Bill C-337. Women's Shelters Canada, formerly known as the Canadian Network of Women's Shelters and Transition Houses, brings together 14 provincial and territorial shelter organizations representing over 400 shelters across Canada.

We believe that the introduction and, more importantly, the implementation of Bill C-337 is an important step in the right direction. We congratulate all MPs who are working across party lines to make this a reality. Following the numerous testimonies that you have heard over the last 18 months as members of this committee, I do not need to convince you that the systems intended to respond to violence against women are broken.

Recent court decisions in Alberta and Nova Scotia involving sexual assault and domestic violence have spurred public outrage. Clearly, Judge Lenehan and former Justice Camp demonstrated a clear disregard for and a lack of understanding of sexual assault and definitions of consent as defined in the Criminal Code.

In November 2016, Judge Deborah Paquette of the Supreme Court of Newfoundland and Labrador downplayed the severity of strangulation in a domestic violence case, treated the perpetrator as the victim, categorized domestic violence as a private matter, and sentenced the RCMP officer to only 14 days' house arrest for assaulting his former girlfriend. This was in November 2016.

These recent examples, which are by no means exceptions, demonstrate how Canadian courts are failing to send the message that sexual assault and all forms of violence against women are unacceptable. For decades, advocates in the violence against women sector, and survivors, have fought to make domestic violence and sexual assault a visible and socially significant issue. Despite this, we continue to see our work undermined by Canadian judges, who label domestic violence as a private matter and misunderstand the basic ideas and laws about consent and sexual assault.

Enacting Bill C-337 to ensure training for judges working on cases of sexual assault is a demonstration of the Government of Canada's commitment to ensure that our legal system believes survivors. Training, however, must go beyond federal judges. Police, lawyers, crown prosectors, and judges all need training on sexual assault and domestic violence. For victims of sexual assault, police officers are their first interaction with the justice system. Since fear is the main barrier to victims' reporting sexual assault and domestic violence, we need systems that support victims and do not cause them further harm.

Our understanding of the proposed bill is that it only covers federally mandated judges. This is an example of why we need a national action plan on violence against women. A national plan could cover judges mandated by the provinces and territories and begin to ensure that women in all areas of the country have access to comparable levels of services and protection. This is not the case today. This is an area where federal leadership is called for.

In conclusion, mandatory and ongoing education that includes the neurobiological impacts of trauma, the power and control dynamics of violence against women, the role of intersectionality, and the experiences of survivors, with input and participation of women's organizations, would go a long way.

At Women's Shelters Canada, we would like to see training for judges broadened to include not only training on sexual assault but also training on domestic violence and the gendered nature of violence against women; training to better understand colonization and intergenerational trauma, with a focus on their impact upon Canada's indigenous peoples; training for the judicial committees that oversee the appointment of judges; collaboration with women's organizations in developing training, including trauma-informed approaches; and finally, training that is shaped by the perspective of survivors, as they are indeed the true experts.

That concludes my presentation.

[Francyne Joe, President, Native Women's Association of Canada]

Good morning Madam Chairperson, committee members, guests, and distinguished witnesses.

My name is Francyne Joe, and I am the interim president of the Native Women’s Association of Canada. I would like to first acknowledge that we are on Algonquin territory and we are meeting here on this beautiful spring day.

I am honoured to have worked alongside Ms. Martin of Women’s Shelters Canada on the 16 days of activism to end violence against women campaign. I thank all of today’s witnesses for their commitment to supporting the empowerment of women and advocating for policies that address the roots of violence against women.

I am here today with Mr. Chad Kicknosway, NWAC’s senior adviser on justice and human rights.

We thank you for the opportunity to present to you today on such an important subject. As a woman of first nations descent and a national representative of first nations and Métis women, it is my primary goal to advocate for policies that improve our well-being. This includes social, economic, cultural, and political spheres. The issue of violence against women extends into each of these areas.

I believe that the reported rate of one in three women living in Canada experiencing sexual assault in their lifetimes is a low estimate, when low reporting rates are taken into account. For indigenous women, the rate is at least three times higher. The launch of the national inquiry into missing and murdered indigenous women and girls marks the official recognition that violence against our women has reached pandemic proportions.

Indigenous women face multiple barriers to receiving justice after being assaulted. The first is the fear of coming forward. This may be a fear of retaliation, but it is commonly a fear of not being heard or believed. There is no question that the general practice of victim-blaming stops many women from coming forward. Indigenous women face not only the sexist aspects of the system but the practice of racism as well. It is well documented that indigenous women have been questioned aggressively, unfairly judged, humiliated, and even assaulted while reporting their assaults and even while in custody.

It may no longer be the practice of the media to criticize a woman for her lifestyle when reporting on cases of sexual assault. However, the decisions and comments made by judiciary officials have continued to perpetuate the racism and sexism that contribute to the propagation of violence against indigenous women. In the case of Cindy Gladue, a judge allowed graphic genital photos of the victim and a physical sample from the body to be shown in court. The fact that she was a sex worker was given undue bearing in the proceedings. The court’s prejudice had an impact on the jury’s judgments on consent and led to the ultimate acquittal of the man who killed her. Such errors in judgment, coloured by ignorance, bias, and outright racism, send indigenous women and perpetrators of violence against indigenous women a message that indigenous women’s lives are not valued.

Indigenous women need to be shown that they are loved and that they are valued.

Our justice system needs to address this by passing bills that will strongly discourage light sentencing against perpetrators of violence against indigenous women, consider being an indigenous woman as an aggravating factor when sentencing an offender, and address the systemic racism and sexism that keeps indigenous women silent, which encourages a perception that they are vulnerable.

This bill comes at a pivotal time in Canada’s history as we move toward reconciling with the first inhabitants of this country, the indigenous population. The passing of Bill C-337 would send a clear message that the justice system refuses to play a role in further violence against indigenous women and that indigenous women are respected, loved, and valued.

We thank you for this invitation to offer our input on the specifics of this bill and its implementations.

Therefore, on behalf of the Native Women's Association, I’m pleased to state our support for this bill and elaborate on our recommendations and concerns.

The proposed addition to the Judges Act to make it mandatory for newly appointed judges to complete comprehensive education in sexual assault law is a positive move forward. It must be expected that NWAC would bring forth the recommendation that this comprehensive education include a distinct section, or course, or chapter that discusses indigenous women exclusively. NWAC has done extensive work in this area already, and we are ready to offer our continued expertise on this matter. This could take the form of developing a comprehensive educational tool kit that brings awareness to the unique issues that indigenous women experience.

My first recommendation for the committee to consider is incorporating into subclause 2(2) of the bill, a reference that specifically addresses violence against indigenous women. Therefore, tail end of the proposed amendment of subsection 3(b) of the Judges Act would read, “as well as education regarding myths and stereotypes associated with sexual assault complainants, and education regarding the unique experiences of sexual violence against Indigenous women.”

I believe this inclusion will add value to the reconciliation process between Canada and the first inhabitants of this country.

A shortcoming of the bill that may have been brought to your attention appears to be that the bill's requirements of the comprehensive education in sexual assault law would only apply to newly appointed judges.

Subclause 2(2) of the bill is clear, that candidates in consideration of judicial appointment need to undertake education and “instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants.”

There's nothing the bill—