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.

[Ramesh Sangha, Liberal, Brampton Centre, ON]

Thank you, everyone, for coming today and giving your valuable input.

In Bill C-5, the major part that we are studying is how the Canadian Judicial Council will establish standards on how to give training to new judges. In that, they will have suggestions from you and different groups to build the standards. Those seminars will be imparted to the judges who are coming for the training.

From yesterday onward, we have heard from many sectors. People have come here to give their organization's and association's input. It's regarding seniors, children, women and different types of other communities. You people are doing a great job of representing separate sectors of the community.

We have to keep the independence of the judiciary on one side here. This question is the same and one that is asked many times. Please give your points on what you want to be included in the seminar for training the judges, so that we can ensure that the best judicial training is being given and is comprehensive and inclusive. Keep in mind that those judges already have the best experience. They have 10 years experience as lawyers. They were in the communities. They know many things and still we want to give them training regarding the sexual assault cases.

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

Thank you, Madam Chair.

My thanks to all our witnesses for their significant contribution.

We all agree, of course, that victims must be better protected and that the judicial system must be adapted so that it supports and understands them better.

However, I must admit that I am troubled by what we are told about children who are victims of violence and sexual assault. We are hearing a lot about them these days. I somewhat agree with the witnesses on this, particularly with Ms. St. Germain and Ms. Grover.

Ms. St. Germain spoke briefly about the sort of unique environment for the Youth Division. The judges in that court work with young people on a daily basis and have a somewhat different approach. In many circumstances, for example, it is possible to hear the testimony of young children in a place other than the courtroom so that those children feel more comfortable.

First, do you believe that the training proposed for judges under Bill C-5 should be based on what is done in the Youth Division, or even be largely, but not identically, modelled on the division's approach?

Second, in what specific ways could we reduce the impact of sexual assault on young people and make it easier for them to testify?

[Jess Grover, Board Chair, Kawartha Sexual Assault Centre]

Madam Chair and hon. committee members, good afternoon. I'm Jess Grover, the chair of the board at the Kawartha Sexual Assault Centre, KSAC; and I am joined today by Amie Kroes, the board secretary. We're here to speak in favour of Bill C-5.

Each year, KSAC, located in Peterborough, Ontario, works with nearly 750 clients and receives nearly 1,000 crisis calls, and nearly 15,000 people take part in our prevention education program. I've been a volunteer with KSAC for almost a decade, and I joined the board in 2016. I am a survivor of child rape.

The passage of Bill C-5 would be a crucial beginning step in addressing rape culture in Canada. Rape culture is an environment that normalizes and trivializes sexual assault through pervasive rape myths. These false ideas about survivor/victims and the nature and frequency of sexual assaults are all disproved by the support work and research that sexual assault centres across Canada do.

Rape culture is like dust. It floats around us, often imperceptible, especially if you aren't looking for it. It is tossed into our environment through the stories we consume and the biases we pass from generation to generation. As we interact with others in our society, it settles onto all of us. Every single person in this room is carrying a bit of this with us, and it weighs down our decisions and our actions. Unless we actively recognize and work to dismantle rape culture, it will continue to build up and weigh down our society. Make no mistake about it. The dust of rape culture floats through the justice system, and it will continue to collect on its inner workings until the system breaks under the strain of it.

All of us in this room can name very public instances that have caused Canadians' faith in the judicial system to be eroded with regard to sexual assault, which have directly impacted our work of sexual assault support and prevention education. This harmful environment in some courtrooms dissuades our clients and other survivor/victims from pursuing criminal avenues, and it directly contributes to sexual assault case attrition. These instances are directly cited by our clients accessing support.

We do not want to bias the judiciary. We do not want to tell judges how to do their job. We do not want to compromise the independence of Canada's judicial system.

We support this bill because it would help address the biases that we know currently exist.

We support this bill because we believe that education on sexual assault will directly impact our work. We want to stop feeling trepidation when we present the option of pursuing legal avenues to victims and survivors.

We support this bill because we expect our government to listen to Canadians and ensure the fairness of our justice system.

We support this bill because we understand that judges want to come to sound decisions, and this bill would help empower them to do so.

We support this bill because we expect courtrooms to stop contributing to the perpetuation of rape culture in Canada.

[Sarah Flemming, Executive Director, Colchester Sexual Assault Centre]

Good afternoon. Thank you, Madam Chair, honourable committee members, and all others present today. I am Sarah Flemming. My role is executive director of the Colchester Sexual Assault Centre in Truro, Nova Scotia.

I would like to thank you for the honour of speaking on behalf of Bill C-5 this afternoon. In our small town located an hour north of Halifax, we support Colchester County as well as two neighbouring counties, with free trauma counselling, outreach support at schools and in other organizations, and workshops and presentations all year round.

We have two part-time counsellors who have, on average, 450 individual counselling sessions and an unlimited number of drop-ins per fiscal year.

We are in what is known as a current hot spot for sexual exploitation and trafficking. Court support is also something we offer to clients. We have had two clients in the last year who have utilized that service.

I am here today to offer my insight on an area that I feel will create ripples across the judicial process. It will see more victims and survivors come forward to have their assailants charged. It will create a higher level of trust between police, lawyers, judges and the greater community.

This bill is not asking judges to become partial to the plight of victims, but rather, it will allow them to perform their job through an anti-oppressive practice.

Marginalized women are at a much higher risk of sexual violence and have a much lower rate of reporting. I don’t think we need to ask ourselves why. I believe we are well-informed of the risk factors of sexual and domestic violence. However, as a country, I think we do a poor job of implementing these practices and ultimately keeping women safe.

Nonetheless, we are making progress where it counts. In my small town alone, our court system has developed a mental health and domestic violence court. In working with community partners, both victims and offenders are able to get the support that is needed to reduce recidivism, while holding offenders accountable for their actions.

I was once told not to come with a problem but rather with a solution. My solution to supporting victims/survivors is to have judges trained in best practices while facilitating a more restorative approach when appropriate, and to have sexual assault and sexual violence cases presided over under the mental health or domestic violence courts where appropriate. This is not necessarily always the best practice for everyone, but it may be a way to support victims when needed by allowing them access to the services that can keep them safe and prevent further harm from happening.

I feel that we need to broaden the collective lens on sexual violence, and passing this bill is a step in the right direction. What would it mean for victims to feel that when they walk into a courtroom, they do not have to fear the repercussions of their trauma following them throughout their lives? We have an opportunity to hold offenders responsible and potentially to provide them with what behaviour is expected of them in a cab, at a bar, or in a 20-year marriage.

The outrage of revictimized survivors needs to leave only sexual assault and women’s centres and enter into the realm of everyday conversation. I want to hear the retired men at my local Tim Hortons discuss how no person deserves to be assaulted, without mentioning how much they drank, what they wore, or questioning their motives in terms of money or fame.

When I tell victims that it is not their fault, I want them to believe me and to know that the justice system is in place to support them and to follow up. In the event that there is a “not guilty” verdict, I want them to have the chance to know why, to understand the due process and legal jargon, all while feeling in control and supported.

Thank you again for having me speak on behalf of the Colchester Sexual Assault Centre, as well as Colchester, Cumberland and Hants counties in Nova Scotia. I look forward to hearing further updates, and hopefully the passing of this so important and timely bill.

[Monique St. Germain, General Counsel, Canadian Centre for Child Protection]

Thank you and good morning.

Ms. Chairperson and distinguished members of the committee, thank you for giving us the opportunity to provide a presentation on Bill C-5. My name is Monique St. Germain. I am the general counsel of the Canadian Centre for Child Protection, which is a registered charity dedicated to the personal safety of all children that has been operating for over 30 years.

For the past 17 years, we have been operating Cybertip.ca, which is Canada’s tip line to report the online sexual exploitation of children. Cybertip is a central part of the Government of Canada’s national strategy for the protection of children from sexual exploitation on the Internet. We also created and operate Project Arachnid, a global platform to reduce online child sexual exploitation.

Every day our agency bears witness to the brutal ways in which children are victimized online. The vast majority of the reports we receive through Cybertip relate to images and videos, material that depicts very young, prepubescent children, many of whom are pre-verbal and cannot tell anyone about the abuse they are enduring. Most of these children have never been identified by law enforcement.

We also work directly with survivors of childhood sexual violence, including those whose childhood sexual abuse was recorded. We know all too well the devastating and long-lasting impact that these crimes have on victims and their families. I am here this morning to express our agency’s strong support for Bill C-5 and to put forward our recommendations to specifically account for children in this bill.

First, the term “sexual assault law” is not defined in the bill. It should be crystal clear within the Judges Act that the term is meant to include all offences listed in clause 4 of the bill.

Second, the Criminal Code offences for which a record must be created does not include the offences related to commercial sexual exploitation of children or sex trafficking. This oversight must be rectified. Consideration should also be given to including offences that involve the use of technology such as the offence of making child pornography.

Third, the mandated inclusion in training that is set out in proposed paragraph 60(3)(b) of the Judges Act is incomplete when it comes to children. Topics that need to be included in training to be responsive to the needs of children include grooming, which is a process by which an offender lowers inhibitions and gains access and time alone with children. We actively monitor reported case law related to sexual offences against children, and it is clear that the Canadian courts need to deepen their understanding of this very common offender tactic.

Another topic is the age of protection or the age of consent. These Criminal Code provisions are complicated. They are specific to minors, and they reference concepts such as trust, authority, dependency and exploitation, all of which are critical legal concepts when it comes to a child’s capacity to consent.

A third topic is the dynamics of child sexual abuse. There are significant differences to consider between adult and child sexual assaults. The perpetrators are different. The extent of vulnerability is different. The tactics used are different. The rates of disclosure are different. Even the ability of the victim to recognize if something was or wasn't a sexual violation is different. All of these issues must be accounted for in any training if that training is to be responsive to children.

The online terrorization and manipulation of children that occurs via technology is unprecedented in today’s society. There are multiple complex Criminal Code [Technical difficulty--Editor]. We live in a world where children can be virtually assaulted and where live-streamed child sexual abuse is ever increasing. The impact on children of technology-related offences can be as serious as offences involving physical contact. It's essential that technology-facilitated offending be included in this training.

Finally, the history and purpose of various Criminal Code provisions that are meant to address the needs of children in the court process, such as testimonial aids, publication bans and section 161 of the Criminal Code, must be covered. These are incredibly important for children.

In closing, we see the concrete evidence of sexual assaults against children every single day. Children are far too often the victims of sexual assault. It is imperative that judicial education account for their unique vulnerabilities, their status as independent rights holders, and all of the Criminal Code provisions that exist to protect their interests. Children deserve to be understood by our courts, and to be fully accommodated throughout all court processes. Thank you.

[The Chair, Liberal, Iqra Khalid]

Welcome to our second panel on Bill C-5.

Thank you to the witnesses for being here today.

Thank you to Raphael Tachie, for your patience. I see you are joined by Lori Anne Thomas from the Canadian Association of Black Lawyers.

By video conference, from the Canadian Centre for Child Protection, we have Monique St. Germain; from the Colchester Sexual Assault Centre, Sarah Flemming; and from the Kawartha Sexual Assault Centre, Jess Grover and Amie Kroes. Thank you for being here today.

We're going to go to our video conference first, and we'll start with the Canadian Association of Black Lawyers, for five minutes.

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

This part of your testimony interests me. Clause 4 of Bill C-5 would add section 278.98 to the Criminal Code, which would require judges to provide full reasons for their decisions, either orally and then recorded in the minutes, or in writing.

Am I to understand that you wish to limit the explanation of reasons? I assume that was not the purpose of your comments, or did I misunderstand?

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

Thank you.

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 all the indigenous communities from coast to coast to coast. We want to thank the Attorney General and the committee for inviting us today to speak. We also want to acknowledge the important work of the other panellists who are speaking today.

In fact, LEAF, who are also joining us today, have been and continue to be important allies for us. They have supported DAWN Canada in several Supreme Court decisions that provide us with concrete, measurable evidence that the issue of myths and stereotypes related to victims of sexual assault have a particularly egregious impact on deaf women and women with disabilities, particularly women with mental disabilities, including learning and intellectual disabilities, psychosocial disabilities and brain injuries. Let's be clear: It's when communication and interaction with the victim may be different.

We are here to discuss Bill C-5, an act to amend the Judges Act and the Criminal Code. We hope this legislation is enacted quickly. We expect and anticipate strong, non-partisan support from this committee. In preparing for today, I found something very interesting in the 2004 publication of Ethical Principles for Judges . It's not in the 2020 draft, by the way. In the chapter that focuses on equality, Chief Justice McLachlin and the committee chose to cite Eldridge specifically in the context of the risk of stereotyping.

DAWN Canada were intervenors in the Eldridge decision and in D.A.I. 2012. That was another very important decision that speaks to the myths and stereotypes that have been perpetuated in the courts and in society. In D.A.I., the issues of myths related to sexual assault are central and make clear that judges are themselves subject to biases, including deep-rooted biases that are linked to systemic sexism, racism and ableism. A review of CanLII reveals 723 instances of Eldridge being cited, and 152 for D.A.I.

I'd like to draw from the McGill Law Journal, in which Isabel Grant and Janine Benedet, in “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues”, wrote as follows:

The tendency to infantilize women with mental disabilities contributes to sex discrimination against them by perpetuating stereotypes of asexuality and hypersexuality. When these women are analogized to children, sexual relationships are no longer seen as necessary or important for them and they are depicted as asexual. Since no sexual activity is considered appropriate for children, the sexual activity that these women do have is then labelled as inappropriate, and they are also tainted, paradoxically, with a label of hypersexuality.

The criminal trial process was not designed to facilitate the testimony of persons with disabilities. Oral testimony under oath, cross-examination, and the requirement to repeat one's story over and over again to persons in authority with consistency over a long period of time can present serious challenges to women with mental disabilities, yet these requirements are accepted without question as integral to the criminal trial process. An inability to operate within the confines of the traditional trial process may result in the diminished credibility of a woman's testimony or even in the granting of a stay of proceeding.

The nature of the evidence received by courts in sexual assault cases presents other concerns. The routine use of sexual history evidence, cross-examination on therapeutic and other third-party records to undermine credibility, and the requirement of recent complaint raise unique concerns for women with mental disabilities. We suggest that the myths and stereotypes on which these devices rest remain....

My final comment and reminder to this committee is that 24% of women in Canada live with a disability. That's the statistic. Women with disabilities have the highest—the highest—rates of sexual assault of any women and girls in this country.

Madam Chair, if we are permitted to share our recommendations, Karine-Myrgianie will share them.

[Hana O'Connor, Ontario Conferences Coordinator, Canadian Centre for Gender and Sexual Diversity]

Good morning.

The Canadian Centre for Gender and Sexual Diversity advocates for a world free from discrimination. To that end, we work through the fields of advocacy, education, research and resource creation to support 2SLGBTQ+ communities across Canada. To support this mandate, we support teachers and service providers as they work toward bridging knowledge gaps around gender and sexual diversity.

The intimate partner violence prevention program at the Canadian Centre for Gender and Sexual Diversity aims to increase capacity of LGBTQ2S+ agencies by providing them with the tools, information on resources and services and training to support LGBTQ2S+ survivors of domestic physical assault, sexual assault and emotional abuse, and to increase and equalize their access to the criminal justice system.

We work with LGBTQ2S+ agencies, law enforcement and non-LGBTQ2S+ organizations to create best practices to address the gaps in victim services and increase access to justice for LGBTQ2S+ people. These organizations include: sexual assault centres, community resource/health centres, legal services, victims services, police units, sexual health centres, pride centres, university and college programs, and many others. We will work with any and all service providers across Canada who may come into contact with LGBTQ2S+ survivors of intimate partner violence to increase the positive quality of these interactions.

In looking at the proposed legislation, Bill C-5, we support the rationale. In particular, the following points resonate with our program:

And whereas reasons for decisions in sexual assault proceedings enhance the transparency and accountability of the judiciary;

Whereas survivors of sexual assault in Canada must have faith in the criminal justice system;

Whereas sexual assault proceedings have a profound effect on the reputations and lives of the persons affected and present a high possibility of revictimizing survivors of sexual assault;

and in particular, the importance of

continuing education

Working with service providers across Canada, we are aware that ongoing education is a successful method of intervention in confronting bias for service providers. The formal process for survivors of sexual assault to receive necessary advocacy, health and legal supports is multi-faceted and involves a multitude of service providers. At every stage, there are barriers, which can relate to the intersectional identities of survivors. Ongoing discrimination based on a multitude of factors and lived experiences can further compound and weaken the relationship between survivors, service providers and the state.

Much of the same can be said for folks whose experience of sexual assault and violence also includes intimate partner violence. Members of the 2SLGBTQ+ community are, broadly speaking, more impacted by sexual assault and violence, and thus their lived realities need to be understood for competent services to be delivered.

Working with social workers, HR professionals, medical professionals and others in service provision, our aim in the IPV prevention workshops is to dispel harmful stereotypes and misconceptions that influence notions supporting survivors of sexual violence. Two crucial assessments include decoding which partner is the victim or abuser and providing services to transgender and gender non-conforming clients.

Notions of masculinity and femininity, age and appearance can often impact how service providers respond to situations of abuse as they first assess and react to the situation. Through the four years this project has been funded, we have delivered roughly 300 workshops to service providers across Canada. Starting with a greater understanding of gender and sexual diversity, we transition into situations and problem-solving, which challenge existing bias.

We have found that such training needs to be ongoing and of varied lengths depending on the particular organization, and we would encourage that the proposed seminars be lengthy. There are also provincial and regional disparities, which require training sessions to always take into account local needs, as they vary significantly.

Finally, the organizations that participate are engaged in an ongoing process of ongoing education to continue to address personal, organizational and policy-based barriers. Our training and workshops succeed because the goal is to promote a mentality focused on social justice and trauma-informed care, instead of a set curriculum.

I will now introduce our executive director, Cameron Aitken.

[Raphael Tachie, Vice-President, Canadian Association of Black Lawyers]

Thank you for inviting CABL to speak on this matter. We appreciate the opportunity to do so.

From CABL’s perspective and the communities we represent, the intention behind Bill C-5 is laudable. We think the idea of educating the judiciary on taking the social context into account in sexual assault cases is a positive step and should be recognized and lauded.

We have a couple of concerns that we wish the committee to consider and take into account. The first concern revolves around the idea regarding interference with judicial independence. We question whether an undertaking to complete certain training or courses will be seen as interference with judicial independence by the executive and legislative branches.

The proposed amendments, furthermore, do not contain any enforcement mechanisms, whereby an individual provides such an undertaking, and then later on does not fulfill the requirements. Without an enforcement mechanism, we question whether the perception of interference with judicial independence is really worth it at the end of the day. That's our first concern.

The second concern we have revolves around the lack of definition of social context. If the amendments are to proceed as drafted, we urge the committee to think about the differential impacts of the law on the bodies of indigenous and black people. More specifically, when it comes to sexual assaults, whether in regard to victims or as accused, stereotypes about black and indigenous people lead to differential treatment under the law. These have different impacts on our bodies and communities.

CABL, therefore, urges the committee to include express language relating to the experiences of black—

[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?