Bill C-5 (Historical)

An Act to amend the Judges Act and the Criminal Code

This enactment amends the Judges Act to restrict eligibility for judicial appointment to persons who undertake to participate in continuing education on matters related to sexual assault law and social context. It also amends the Judges Act to require that the Canadian Judicial Council report on seminars offered for the continuing education of judges on matters related to sexual assault law. Finally, it amends the Criminal Code to require that judges provide reasons for decisions in sexual assault proceedings.

[The Chair, Liberal, Iqra Khalid]

Good morning, everyone.

Today we are having our second meeting on Bill C-5.

In our first panel, we have the Canadian Association of Black Lawyers, the Canadian Centre for Gender and Sexual Diversity, the DisAbled Women's Network Canada, and the Women's Legal Education and Action Fund.

I'll ask the Canadian Association of Black Lawyers to present its opening remarks for five minutes. This will be followed by questions from members.

Without further ado, Raphael Tachie, from the Canadian Association of Black Lawyers.

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

Clause 4 of Bill C-5 talks about the amendment to the Criminal Code that will require judges to give reasons for their judgments. I believe this obligation applies to both federally and provincially appointed judges.

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

Mr. Lametti, I will not repeat what I have already said and what has been said. We subscribe to judicial independence.

The second jurisdictional concern of the previous witnesses is the need for some training for provincial judges, which you've addressed. You mentioned that.

As a former Quebec law professor and a lawyer who practised in Quebec, do you feel that the training that Quebec judges currently receive meets many of the criteria contained in Bill C-5?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thanks, Minister.

I understand that none of those.... I couldn't find them anyway, so I wonder if that might be something to look at.

When you brought Bill C-5 forward and in drafting it, did you meet with any of the survivor groups and include any of their recommendations?

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you very much for that answer.

Second of all, we are told that the majority of sexual assault cases are dealt with outside of where this legislation will be touching, basically within the provincial courts.

Can you speak a bit more to how you have spoken with your counterparts on the provincial side? How they can enact legislation similar to Bill C-5?

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Minister, thank you for being here.

You talked a little bit about the importance of judicial diversification and how it can help achieve the objectives of Bill C-5.

We're having a number of witnesses from different backgrounds, including indigenous backgrounds, people who are black, south Asian and from other communities. Can you speak a bit to how diversification of the bench could help with the spirit of Bill C-5?

[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.

[The Chair, Liberal, Iqra Khalid]

Welcome back, everyone, to the second hour of this justice meeting discussing Bill C-5. We're honoured to have Minister Lametti—our Minister of Justice and the Attorney General of Canada—here to talk about this. We also have department officials Nancy Othmer and Stephen Zaluski. Welcome to our committee.

Without further ado, I pass it to you, Minister Lametti, for your opening remarks.

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

I'll get a last question in here for the Canadian Judicial Council. Bill C-5 stipulates that the courses have to be developed in consultation with persons, groups or organizations that the Canadian Judicial Council considers appropriate. Could you inform the committee how you decide who is appropriate and who to consult on these matters?

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

Thank you very much, Chair.

Justice Kent, Justice MacDonald, thank you so much for coming to be with us today.

I am detecting the struggle that both of you are having with the subject, because I know you want to maintain the principle of judicial independence, and you've stressed very much that these educational programs are happening. They're being led by judges, and that's the way it should be, but at the same time, we as the people's representatives have heard from our constituents and from Canadian society that there is this loss of faith in our justice system.

We see judges who have quite recently used discredited myths and stereotypes when making their rulings. They've used insensitive language.

I guess I just want to tack onto the last line of questioning. You've made your proposed amendments to Bill C-5. Is it your view that this bill is necessary? You've talked about the laudable goals of Bill C-5, but are you quite happy with the bill being presented to us? Is Parliament fulfilling its obligation with it?

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

It wasn't so much that I was concerned about that; I share that concern. As I said, this is a provincial responsibility, and I am confident that the provincial governments will take whatever measures they deem appropriate for the education of their judges.

Here's what I'd like you to help me understand. In the position you're taking this morning, isn't there some kind of contradiction? We're asking the public to trust their justice system. That goes without saying, and I trust that system as well. But they are being asked to give that confidence to the detriment of the democratic process that allows the legislator to give directives, as Bill C-5 does by proposing training for judges.

I'm not sure I understand your position on this particular issue. Citizens should take away the right of the legislator to decide these things and leave it to the judges, which I find a little difficult to accept. I would like to hear what you have to say on this point.

[J. Michael MacDonald, Acting Executive Director and Senior General Counsel, Canadian Judicial Council]

Thank you, Madam Chair.

I'm pleased to have been invited to speak to the honourable members of this House in my capacity as interim executive director of the Canadian Judicial Council. While I am no longer a judge or a member of the council, I do have significant knowledge of the council, as I am the former chief justice of Nova Scotia and I was a council member for over 20 years.

Madam Chair, if it's fine with you, Justice Kent and I propose the following approach. She will soon speak about the excellent educational programming available to all judges in Canada through the National Judicial Institute. I will then speak to the council's overall view of Bill C-5and its laudable goal of strengthening public confidence in our justice system, particularly for sexual assault survivors. The goal is one that the judiciary in Canada wholeheartedly agrees with.

We do, however, want to respectfully stress two concerns for your consideration. Firstly, the principles of judicial independence and separation of powers require judicial education to always remain under the control and supervision of the judiciary and free from outside influence. Of particular concern would be influence from government, which after all, is a party to all sexual assault cases.

The second area of concern involves the fact that this legislation covers only federally appointed judges. Yet our provincial and territorial judges hear the vast majority of sexual assault cases. In our view, they require access to the same judge-led training opportunities as their federal counterparts.

If the government is intent on passing this bill, then to address our judicial independence concerns, I will propose some minor adjustments to the bill's present language to temper and moderate the bill's effect on the principles of judicial independence.

Then we would be happy to take questions.

First, I would like to say a word about the role of the Canadian Judicial Council. The council is composed of all federally appointed chief justices and associate chief justices of Canada's superior courts. It works to preserve and enhance public confidence in the judiciary. Chief justices must be, and be seen to be, leaders in the education of judges.

Furthermore, honourable members, as Justice Kent will detail, Canadian chief justices are and must be leaders in judicial education. Overseeing judicial education is a fundamental responsibility of the judicial branch of government and is a key focus of our council's mandate. I can assure each and every one of you that every council member takes very seriously their responsibility to provide oversight and guidance on the kinds of continuing education the respective judges undertake.

In short, to ensure public confidence in the administration of justice, the justice system relies on a well-educated, professional and independent judiciary.

Let me again make it clear that we entirely agree with the laudable objectives of this legislation and what it seeks to achieve. All Canadian judges must be keenly aware of the challenges faced by survivors of sexual assault. I have three daughters. My daughter is a first-year lawyer. She reminds me that the social context to education of the type targeted by this bill is as important and fundamental as our understanding of contract law, tort law, criminal law and other substantive law.

As my colleague, Justice Kent, will attest to and provide more detail on, the National Judicial Institute, Canada's primary education provider for Canadian judges, is committed to ensuring that its professional development programs and resources meet the needs of Canada's judiciary and ultimately help to strengthen the justice system.

The judiciary is keenly aware of the need to continually improve and learn to maintain the confidence of the public. Let me respectfully say, in our humble opinion, we are on top of this.

My colleague, the NJI judge, will now provide you with more details in this regard.

[Isabelle D'Souza, Legislative Counsel, House of Commons]

Good morning.

My name is Isabelle D'Souza. I'm a legislative counsel at the Office of the Law Clerk and Parliamentary Counsel. I am the person assigned to Bill C-5 regarding the drafting of amendments. If you plan to submit requests for amendments to this bill, please forward them to me as soon as possible.

Please be advised that all our exchanges are confidential and non-partisan. If you intend to make requests, all you have to do is send me your instructions in writing, in your own words. If you are planning to make multiple requests, we have created a template that you may find useful in preparing your instructions.

Otherwise, when I receive your instructions, I will make sure to turn your idea into law, with the appropriate legal effects. If I believe that some of your proposals raise legal, charter or jurisdictional issues, I will bring this to your attention and, if possible, find alternatives.

Please note that the process for drafting amendments is similar to the process for drafting private members' bills. Each amendment must go through the drafting, approval, proofreading, translation and jurilinguistic revision stages. This means that the process can be quite lengthy, depending on the complexity and volume of requests received and on the fact that we sometimes work on several bills at the same time.

That takes me back to square one. Please send me your requests as soon as possible. Feel free to call me or contact me if you have any questions at any stage of the process, I will be happy to assist you.

Thank you for your time.

[Émilie Thivierge, Legislative Clerk]

I'm Émilie Thivierge, the legislative clerk assigned to Bill C-5. My role is to provide you and the chair of the committee with some advice on the admissibility of amendments for the clause-by-clause consideration of Bill C-5.

If you have any questions on the admissibility of an amendment that you would like to bring forward, or if you have any questions on the clause-by-clause process itself, please feel free to contact me.

My phone number and email address can be found in the memo you received. It is also possible for me and my colleagues to go to you to provide you with training on the admissibility of amendments and clause-by-clause study, if you wish.

Finally, if you wish to discuss the admissibility of an amendment that was drafted by the legislative counsel, namely my colleague here, Isabelle D'Souza, it's always useful and beneficial to give her permission to discuss it with me.

That said, I yield the floor to her.