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.

[Jackie Stevens, Executive Director, Avalon Sexual Assault Centre]

Thank you. Good morning.

I am Jackie Stevens with the Avalon Sexual Assault Centre. I want to acknowledge that I am presenting to you today from unceded Mi'kmaq territory here in Halifax.

Avalon Sexual Assault Centre is a feminist, trauma-informed organization that provides services for those affected by sexualized violence. Avalon's primary emphasis is on support, education, counselling, and leadership and advocacy services for women and trans and/or non-gender-binary people.

Avalon offers trauma-specific, individual, therapeutic counselling and group program services for women and trans and/or non-gender-binary individuals, aged 16 and older, in relation to sexual assault or abuse. We provide community education, public awareness, and legal and professional training targeting the prevention of sexualized violence, intervention, and support of victims and survivors.

Avalon also operates the Avalon sexual assault nurse examiner program, which provides an immediate response to sexual assault victims of all ages and genders requiring medical care and the collection of forensic evidence.

Avalon has expertise and experience directly serving individuals who have experienced sexualized violence as well as in advocating for an equality-focused community response to sexualized violence. We've engaged in legal advocacy and education on these issues in Nova Scotia since 1983.

Avalon has expertise in substantive equality, sex-based, and gender-based discrimination and sexual assault law. The presentation is intended to provide the Standing Committee on the Status of Women with further points of analysis and consideration regarding Bill C-337.

Avalon has a substantial interest in this bill and the work of the standing committee because of its importance to the development of sexual assault jurisprudence and the impact of this jurisprudence on women's substantive equality, including the women directly served by Avalon centre.

Here are some points that I would like you to consider as you review this bill.

First, high-profile examples of systemic failure at all levels of the legal process have resulted in low rates of sexual assault reporting, and victims deciding not to participate in or to continue with the legal process after sexual assault or abuse has occurred.

Second, there is a level of distrust and lack of faith in the sexual assault criminal justice process, not only by victims but within the general public.

Third, there is a perception that the rights of the accused are more important than the rights of victims, and that justice is not possible for victims of sexualized violence under the current justice process.

Fourth, the issues brought forth to the public as a result of many high-profile cases have increased the number of individuals who are going public with their experiences before the courts and who are seeking systems and legal-based support and advocacy.

Finally, sexual assault advocates are not adequately resourced to provide ongoing court watch and court support as well as address the need for reform and change, both at an individual victim level and societally and systemically.

Criminal justice reform should continue to be based within the history of sexual assault law reform in Canada and in Parliament's intention to exclude discriminatory myths and stereotypes about women from judicial decision-making.

Past and present judicial statements, such as those of Judges McClung and Lenehan, and Justice Camp, demonstrate a disregard for women who have been targeted for sexualized violence. Their comments are rooted in misogyny, gender stereotypes, and sexual assault myths. Their decisions also demonstrate discrimination based on age, race, and the perception of what is deemed appropriate behaviour.

What is critical to note is that their decisions also demonstrate a lack of understanding of sexual assault and consent under the Criminal Code of Canada and/or blatant disregard for the laws.

Reformative processes should reflect a gendered analysis of the experiences of sexual assault victims and survivors, both when victimized and before the court. Sexual assault and abuse is committed from a position of power and control, and some victims are targeted because of gender, or racial or societal marginalization. Sexual assault laws under the Criminal Code are not gendered. However, how they are administered and interpreted is almost always based on societal perceptions of gender, race, age, disability, and so on.

Many sexual assault cases are investigated, tried, and decided on the basis of looking at the victim's pattern of behaviour and actions to determine consent or to refute that sexual assault occurred, rather than on the basis of looking at the accused's patterns of behaviour that demonstrate predatory, intentional, or criminal actions.

Reforms should apply to all levels of court, not just Canadian superior courts, and should be reflective of all forms of sexual assault or abuse under the law.

Separate from Bill C-337, I would like the committee to consider what practices are in place to ensure that existing policies, laws, and mandates pertaining to judges' training and decisions are being adhered to, and how this committee can influence or improve those current processes.

[Bonnie Brayton]

Good morning, again.

Hello, everyone.

Thank you.

I would again like to acknowledge the Algonquin people.

I was invited here to speak to the proposed Bill C-337, and I'm confident that others who will come before you will focus their remarks on the content and the substance of that bill, which as we know is about the important need to have a judiciary that is well informed in the area of sexual assault.

With limited time, we have instead chosen to focus on the Supreme Court decision that we believe makes it clear why judicial training is essential. We will also suggest that a thorough review of the content of this training is required to ensure that it has a fully developed curriculum to include the range of accommodation required to support all women.

On February 10, 2012, the Supreme Court of Canada released its judgment in the case of Regina v. D.A.I. LEAF and the DisAbled Women's Network of Canada intervened in that appeal. Through this Supreme Court of Canada decision, Chief Justice McLachlin, writing for the majority, described sexual assault as an evil and acknowledged that women with mental disabilities are targeted for this offence at alarming rates. The court confirmed the importance of hearing the voices of women with mental disabilities in the 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.

The legal question before the court was how to interpret subsection 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 have developed a practice 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—is 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 witnesses before they are even allowed to take the stand. If a witness can communicate her experiences and if she can describe what happened to her, she can testify after saying she promises to tell the truth.

The Supreme Court judgment noted that in the past, mentally disabled victims of sexual offences had frequently been 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.

Women with intellectual and cognitive disabilities, including women with brain injuries—frequently acquired as a result of violence—experience staggering rates of sexual assault and are seen as easy targets. Abusers believe that disabled women are powerless to complain or will not be believed even if they do complain. The Supreme Court, in rendering this decision, acknowledged this reality and confirmed that their testimony is essential to any realistic prospect of prosecution.

The Supreme Court 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 Supreme Court itself said, excluding evidence would effectively “immunize an entire category of offenders from criminal responsibility”, with devastating harm to the abused women and to society as a whole.

The Supreme Court of Canada decision also notes that the questioning of mentally disabled adults may require accommodation of each individual's particular needs, so that their evidence is best communicated in court. This aspect of this ruling is in step with international law in other international jurisdictions. The U.K., for example, is currently far ahead of Canada in terms of providing for witness intermediaries who assist persons with communication 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.

The decision is also consistent with Canada's international human rights commitments. The UN Convention on the Rights of Persons with Disabilities points to the need for our country to uphold its promise under article 13, where we are to have equal access to justice, and under article 16, which commits state parties to ensure that instances of exploitation, violence, and abuse against persons with disabilities are identified, investigated, and where appropriate, prosecuted.

In Canada and around the world, this decision is regarded as a major victory for women and all people with disabilities, and provides opportunities for appeals across jurisdictions around the globe.

[Bonnie Brayton, National Executive Director, DisAbled Women's Network Canada]

Good morning, everyone.

I'd like to begin by acknowledging that we're gathered on the territory of the Algonquin people and that we are in a time of truth and reconciliation with the first peoples of Canada. I was invited to speak to the proposed Bill C-337. I'm confident that others who will come before you will focus—

[The Chair, Conservative, Marilyn Gladu]

Good morning, colleagues.

We are returning to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code regarding sexual assault. We're very fortunate today to have a large group of witnesses. We begin with the Canadian Centre for Gender and Sexual Diversity. We have Jeremy Dias, who is the executive director, and Katerina Frost, who is the government affairs coordinator.

We also have from the DisAbled Women's Network Canada, Bonnie Brayton, who is the national executive director.

From “WomenatthecentrE”, we have Nneka MacGregor and Mandi Gray.

From the Avalon Sexual Assault Centre, by video conference from Halifax, Nova Scotia, we have Jackie Stevens, who is the executive director.

I want to welcome all of our witnesses today. Each of you will be able to begin with your five minutes of comments.

We'll begin with Katerina for five minutes.

Status of Women

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

Mr. Speaker, the question is timely because this morning at committee we are studying Bill C-337, which is to require sexual assault training and gender sensitivity training for judges, following on the just terrible headlines. The few women who report sexual assault, the few women who get police to agree that their assault was real and that there should be criminal charges, then have these terrible headlines about judges who show disrespect, who do not understand the law. We are very afraid that this is going to have an inhibiting effect on women's willingness to report. It is so important that this is an all-party commitment that we get judicial training right.

The evidence we heard at committee this morning is that the judicial training is really great right now and that it is going to be a lot better in the next few months, which is awkward, honestly, because if it were really being done well, we would not have these calamitous headlines about how some victims and survivors of sexual assault have been treated.

However, it does remind me of the testimony we heard at the same committee around gender-based analysis, which is the focus of this report, that although successive Auditor General reports had given both Liberal and Conservative governments a fail on implementing gender-based analysis, the current government now had taken internal measures and things were going a lot better inside some of the government departments.

I will say again that, until this is legislated, we will not have the transparency we need to know how the government is making its decisions in relation to its gender commitments.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

One of the things we heard in our violence against young women and girls study is that different groups of women experience violence differently. I noted that Ms. Hendel talked about factors of privilege. I know Professor Koshan has written on myths and stereotypes, and Dr. Craig on The Inhospitable Court. We heard this significantly as a deterrent for women in seeking justice.

One of the key issues is that there is an intersectionality with different identity groups. LGBTQ women, indigenous women, those living with disabilities, newer immigrants, and other identity groups have even more difficulty. I noted that in Bill C-337 there isn't a specific lens in terms of intersectionality.

I'll start with Ms. Hendel, and then I'll let others respond. Do you think it would be an improvement to the bill if we were to include a necessity for that? Also, are you aware whether this kind of training already exists, or is this something that's already absent?

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you.

My question is to Professor Craig. You indicated that your experience is in constitutional law, and you spoke about written and provincial responsibility. In your opinion, does Bill C-337 create any provincial jurisdiction issues, and also, does the bill undermine a judge's independence?

We have 30 or 60 seconds.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you very much.

I found your presentations very interesting and informative. Thank you for all the work you're doing in terms of the training of judges, and for sharing that with us.

In looking at the current form of Bill C-337, in your experiences, what would be the unintended consequences of this current piece of legislation? You've identified some of them. If it were passed, what might be some of the unintended consequences that we want to avoid?

[Marc Giroux, Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs]

Madam Chair, thank you for this invitation and the opportunity to make a few remarks on Bill C-337.

I am the deputy commissioner for federal judicial affairs and I am now also fulfilling the role of commissioner.

Before commenting on Bill C-337, I would like to speak briefly about the role of the commissioner for federal judicial affairs. Pursuant to the Judges Act, the commissioner acts as the deputy of the Minister of Justice in administering part I of the act, which speaks to the appointment, compensation, and benefits of judges.

The commissioner has other responsibilities, which include, under subsection 74(1)(d), to do other things the minister may require for the proper functioning of the judicial system in Canada. This is where our office is delegated the role of administering the judicial appointments process on behalf of the minister. I would be pleased to explain this in greater detail if there are questions later.

Essentially, our role is to prepare the list of judicial vacancies, oversee the application process, support the 17 judicial advisory committees that assess candidates, and prepare for the minister a list of eligible candidates from which to appoint. Because of the principle of judicial independence, the commissioner and the office are also independent from the Department of Justice.

I would now like to speak to the issue at hand, Bill C-337. Let me first say that, personally speaking, it is completely fair and appropriate, in light of certain cases, that questions be asked about the training of judges in sexual assault law. I certainly understand your interest in the issue and I think the objective of the training is entirely valid and important.

Actually, the issue at stake is finding out the best way to achieve the objective. As part of your discussion on this, we are of the opinion that this deserves some considerations and I would like to highlight two practical points.

The bill, as it currently stands, would have those who wish to become judges complete education in the area of sexual assault law before they are appointed. In the administration of the judicial appointments process, our office receives over 500 applications per year generally. This year we have received 700 applications in less than six months. If education is to be provided before applicants become judges—that is, during the assessment process—and to a large number of candidates, our concern is that it will be more difficult to ensure they are properly educated, and that such training will not be exhaustive enough.

The important priorities of, on the one hand, ensuring an efficient assessment process for candidates, and on the other, ensuring that candidates are properly educated in the area of sexual assault law may come into conflict, and one or both of these priorities may suffer as a result. The effects in essence could be twofold: the assessment of candidates may be delayed, and on the other hand, the education candidates receive on sexual assault law may be less than adequate.

If the objective is to determine the best manner in which to educate judges in the area of sexual assault law, which we agree is very important and worthy, doing so at the assessment stage may not be sufficient. It seems it would be best to provide such education once judges are newly appointed. They can then sit down in a class and take a course—perhaps approved by the Canadian Judicial Council as the responsible body under the law, and designed by NJI and its experts—and that course can be longer.

There's a second point that I would like to very quickly raise. In the Judges Act, the commissioner is mentioned only in part III. The commissioner is never mentioned in sections 1 to 72 of the act. Part III states that he is the “deputy of the Minister”. If the bill is passed as is, however, anyone who's appointed judge should have completed, to the commissioner's satisfaction, a refresher course on sexual assault law. That could create a potential conflict between the commissioner and the Minister of Justice, if the two have different opinions about how that training should be achieved. While in all other cases under the act, the commissioner acts as the deputy of the minister, with the bill, he would have a new responsibility independently from the minister, and as part of an appointment process that is not set out in the legislation. That potential conflict should be avoided.

These are my remarks, Madam Chair.

Thank you very much. I would welcome any questions.

[Adèle Kent, Executive Director, National Judicial Institute]

Merci.

Good morning to you all. Thank you for allowing the National Judicial Institute the opportunity to come here to give you some information about judicial education in Canada, an initiative we're just starting with respect to sexual assault training.

Before I do that, I want to say a couple of things to you that I think we likely all agree on.

First of all, when sexual assault cases come into the courtroom, myths and stereotypes risk impeding the judicial process. These risks, we know, persist despite Parliament's effort at amending the Criminal Code and the guidance we have from the Supreme Court of Canada.

The dialogue that Bill C-337 has begun, along with the work this committee has done through your report on violence against women and girls, is a dialogue that the NJI welcomes. When sexual assault trials go wrong, the consequences, we know as judges, are serious for everybody involved.

For me, judicial education is the preventative key to these mistakes' being made. We know that errors will be made. There is appellate review available, but the real way to avoid the trauma that can result from appeals and retrials and that sort of thing is judicial education.

Bill C-337 proposes measures to improve the justice system when dealing with allegations of sexual assault. The NJI applauds the spirit of the act. We have some concerns about some of the methods, and I'd be happy to answer any questions about that in the question period.

With those two things said, let me get to an explanation of how we train judges. I'm going to speak first about federally appointed judges. There are two ways they get training.

First of all, almost all federally appointed judges attend NJI training in their court-based program. That's local to their various courts. Second, in addition, most of these judges also will attend one of the nationally planned NJI courses that we put on.

We know that the courts themselves also do some training. We also work closely with the Ontario Court of Justice, which, as you know, is the largest provincially appointed criminal trial court in the country. Along with the Canadian Association of Provincial Court Judges and the Ontario Court of Justice, we run a new judges school for provincially appointed judges. In all, last year NJI ran 180 days of judicial education.

NJI has been training judges about the dangers of rape myths and stereotypes and the complexity of sexual assault trials for years. Sexual assault trials first are tackled in new judges school, but that training is available throughout judges' careers, either in stand-alone programs that address sexual assault trials or as part of broader training in criminal or evidentiary programs.

Gender-based violence, equality, and discrimination issues are key parts of our broader social context programming. Social context requires judges to take into account the context of the cases they hear and not be influenced by attitudes based on stereotypes, myths, or prejudice. Because of these and other programs, I'm proud to say that we are a world leader in judicial education.

Judicial education must be led by judges; we work with judges throughout Canada to plan our programs. But it's not just judges. We call on academics to provide judges with their legal and social scientific scholarship and information about the impact of our decisions on society broadly. We also call on members of the community. Input from them ensures that NJI's goal of teaching judges the context of the people we serve is brought to the judges.

For sexual assault training, we have worked over the years with police, victim support workers in domestic and sexual assault violence, psychologists and psychiatrists, members of the indigenous community, and other diverse communities, just to give you some examples.

With all of this, can we do more? Absolutely we can.

First, going forward we want to share more information with Canadians about judicial education.

Second, NJI was pleased with the acknowledgement in the recent budget that money is necessary for the education of judges, to make that education even more robust.

Last week, NJI received additional funding from the Canadian Judicial Council. The plan with that money is to fund some videocasts on sexual assault trials, which will be put on our website, thereby making them available to all Canadian judges. I would be happy to explain more about this project to you again during question period.

With that, thank you very much for the opportunity to appear here today.

[Norman Sabourin, Executive Director and Senior General Counsel, Canadian Judicial Council]

Thank you very much.

Madam Chair, members of the committee, on behalf of the members of the Canadian Judicial Council (CJC), I sincerely thank you for your invitation.

The Council was created in 1971 to ensure better administration of justice, to exercise clear authority in overseeing judicial conduct and to assume explicit responsibility with respect to the continuing education of judges.

The independence of the judiciary requires judges to be in charge of the professional training of judges. In return, that requires the judiciary to ensure public trust in the competence of the judges.

The CJC has been a leader in professional training, including in bringing awareness to social issues such as sexual violence.

I am confident that in collaboration with the Commissioner for Federal Judicial Affairs, the National Judicial Institute, and others, the CJC has put in place an outstanding system of judicial education, one that is internationally recognized for its quality.

Unfortunately we've done a very poor job of explaining this publicly, of telling the success story, so I'd like to give just a few highlights about what I think is a success story.

In 1989 the CJC, in its annual report, identified a concern with regard to the treatment of sexual assault cases by judges. The report outlined that a new training program was needed on gender issues so that judges could address gender issues with justice and with sensitivity. Other issues surfaced—aboriginal justice, poverty, mental health, racism—and the CJC created at that time a committee on equality in the courts.

The CJC worked with scholars, with the CBA, with government, and with community groups and adopted, in 1994, a policy of comprehensive, in-depth, credible education programs on social context issues. In 1997 chief justices of the council committed to providing the time and opportunity for all judges to take part in social context programs. As these programs developed, the CJC directed the NJI to include social context education in all of its programming, and that's where we stand today.

To ensure that we continue on this path of comprehensive education for judges, the CJC adopted just last week a resolution for mandatory participation in the seminar for all new federally appointed judges. This is in addition to the long-standing policy of the CJC requiring all judges to devote at least 10 days to professional development each year.

I conclude by emphasizing that professional development is for judges an ethical obligation. It's something that we take very seriously at the CJC. Failure to uphold that ethical obligation may well require a review of the judge's conduct.

I think Bill C-337 provides an opportunity to increase transparency in this area. The CJC has some ideas about the proposed legislation. For example, we think that the objectives sought in proposed subsection 2(2) would be met more effectively by requiring candidates for the judiciary to sign an undertaking on their application form to abide by CJC policies on judicial education, something that we will propose to the minister shortly.

I would also respectfully suggest to the members of the committee that if you want any views, advice, or suggestions when you enter the clause-by-clause review, I am at your disposal.

I look forward to your questions.

I would be pleased to answer any questions you may have.

[The Chair, Conservative, Marilyn Gladu]

Yes, it would be in order to put it in writing and then we'll go from there.

All right. Now we turn our attention to private member's Bill C-337, an act to amend the Judges Act and the Criminal Code (sexual assault).

We're extremely pleased today to have, from the Canadian Judicial Council, Norman Sabourin, who is the executive director and senior general counsel there. We also have, from the National Judicial Institute, Adèle Kent, who is the executive director. And from the Office of the Commissioner for Federal Judicial Affairs, we have Marc Giroux, who is the deputy commissioner.

Welcome to you all.

I'm going to begin with Norman.

Norman, you have five minutes for your comments and then we'll go from there.

Justice

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Mr. Speaker, a few weeks ago, the NDP secured all-party support to fast-track Bill C-337, put forward by the hon. member for Sturgeon River—Parkland, regarding sexual assault training for judges. Women rarely report sexual assault, and, when they do, sadly the justice system often fails to handle these cases properly.

Unfortunately, the Minister of Status of Women does not appear to support this idea, and it sounds like she is washing her hands of this important piece of legislation.

Could the government please tell the House whether it supports this important bill?

[The Chair, Conservative, Marilyn Gladu]

The discussion was about how we were going to hear all of the witnesses on Bill C-337 by April 13, and we wanted the committee members to have the two weeks that we're in the constituencies to consider all of that. We thought that if we had all the briefs by then, they'd have the whole package. If the committee has the will to extend it to the 21st, I don't have an issue with it.

Ms. Vecchio.

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

For Bill C-337.