Evidence of meeting #4 for Justice and Human Rights in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was training.
A video is available from Parliament.
Liberal
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.
David Lametti LiberalMinister 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.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Minister Lametti, for your remarks.
Going on to our first round of questioning, we'll start with Mr. Moore. You have six minutes.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Minister, for appearing here today on this important bill. Thank you for the recognition of the role that the Honourable Rona Ambrose played in the bill getting here to this point.
Conservatives are pleased to support this legislation, and as we enter this phase of the committee doing its work, it's important for us to take a strong look at the legislation and hear from witnesses and you on the bill. We just heard from the Canadian Judicial Council and the National Judicial Institute. I know you mentioned in your remarks the importance of judicial independence, and that was a theme of some of that conversation. They've put forward a proposal for softening some of the mandatory language in the bill—for example, where it says “shall” replacing it with “should”. Can you comment on their proposal in the name of judicial independence?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
First of all, I thank you for your party's support for the bill. I think that's important to outline at the outset.
The second thing that's important to outline at the outset is the really good work that both the CJC and the NJI do to help create what I think is the best judiciary in the world and what a number of experts around the world think is one of the best judiciaries. They already do a great deal of very good work in order to improve the quality of our judicial decisions and, frankly, help raise the standard of the judiciary.
I haven't seen those proposals yet. There's enough, sort of, ministerial hubris to say that you think every bill that you put out is perfect, but obviously we will look carefully at those proposals and we will also hear what you have to say when your committee comes back.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Minister.
I have another question. The Honourable Justice Michael MacDonald is asking for trust in this body to implement without the imposition of the language around mandatory. I think that's an important testimony that we take note of.
Justice MacDonald raises a concern that this bill starts a trend whereby there'd be more and more mandatory courses for judges. That's not a trend, I don't think, that I would like to see come to fruition. We know that there is a great deal of training for our judges. Do you think that's a legitimate concern? How do we keep that in check, in light of the paramount role that our judges play and the importance of judicial independence in our entire system, sending the message that this wouldn't begin a trend whereby new mandatory training take place for our judges on different issues?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I will admit that I'm less worried about a trend. In fact, I'm not worried at all.
First and foremost, the principle of judicial independence is well entrenched in our Canadian legal system. In this particular bill, we have tried to respect that very principle of judicial independence, as Ms. Ambrose did in her original private member's bill. I think we have succeeded.
Secondly, we also have to remember the context in which this private member's bill came out. There were a couple of very high-profile cases, both at the provincial court level, in which things were said in the course of the trial that demonstrated that more training was needed.
This is a particular response to a particularly delicate challenge, and a particularly significant challenge in terms of equality, in terms of treating the victims of sexual assault fairly and sensitively. I'm not worried about that as an across-the-board problem.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Minister.
Minister, in the minute I have remaining, do you or your officials have any examples now of groups or organizations that would be consulted on the seminars relating to sexual assault that will be established? Is there some notion of what groups you'd like to see consulted on those seminars?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
Again, the final decision will rest with the CJC; at best, we could suggest. There are a number of groups that have traditionally worked with survivors of sexual assault, and we would expect that those various groups would be amongst those, but there would be others, too.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you, Chair; and thank you, Minister, for being here today.
I have to say, it's a real privilege to be working on this bill for the second time. I know it's slightly different this time, but it was important then and it's important now. I applaud you for bringing it forward.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
You mentioned the funding in budget 2017 for videos. It's interesting. In 2017, Justice Kent mentioned that she was looking forward to producing them. Today, she told us how they're produced. She has also consulted with groups that we strongly felt she should consult with, so there has been a lot of really positive progress made.
In the bill, what types of safeguards are there? We had a fairly robust discussion last time about social context and the right wording for legislation. We want to make sure that the training is not just about sexual assault but also ensuring that it's about sexual assault of the most vulnerable, indigenous women, people who express different gender identities for LGBTQ....
What is in the bill to ensure that it's intersectional and culturally competent?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
As I responded a moment ago to Mr. Moore, it is ultimately up to the CJC and then working with the NJI to decide what goes in the training. What we're doing here is suggesting terms such as “social context”. Again, there's no magic in that term in the sense that, if there are other suggestions around the table, we will look at them.
However, we can suggest, and then the CJC will take that on. They will incorporate the people they wish to incorporate. They will consult the people they wish to consult.
There's a lot of good faith here. There's a lot of good faith in this room. There's a lot of good faith on the part of the CJC and there's a lot of good faith on the bench, and we shouldn't underestimate that.
We will respect the principle of judicial independence. The CJC will try to get at the very concepts that you've identified in your question and try to train judges accordingly. What we have done is, through the nomination process in this particular bill, ensure that newly nominated judges will have engaged on their own to take on this training as a measure of assuring that this will happen.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Actually, the wording “social context” came from the legislative clerk, so it wasn't the committee that came up with that. It's one that the legislative clerk at the time said was most encompassing.
Hearing what we heard today, I'm pretty confident that what we intended is being done in the education. I was really pleased to hear what we heard.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I have a question as a non-lawyer. I know the answer, but other people who may look at the bill may not. There's a provision in the bill that judges have to enter their reasoning into the record of proceedings, or if the proceedings are not recorded, give a written reasoning. Can you maybe explain to the non-lawyers what the record of proceedings is?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
That's a more technical question. Actually, even though you're a non-lawyer, you've asked a question knowing that you know the answer, which is actually the mark of a lawyer. Never ask a question to which you don't know the answer.
I'm happy to turn over the more technical answer to either Nancy or Stephen.
Nancy Othmer Assistant Deputy Minister, Department of Justice
I'll let Stephen correct me if I'm wrong on this. It really just means that the judge can orally give their reasons and include it in the record of the proceedings for that. It's a verbal reason.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
One of the reasons it was important to have this was that in some of the cases that were the impetus for the bill, it was difficult.... It was several years before they actually found out what was said during the trial. That was the reason that was included in the original member's bill from Ms. Ambrose.
Stephen Zaluski General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Public Law and Legislative Services Sector, Department of Justice
I'll just add to that. The purpose is to ensure that the reasons are in the record one way or the other, whether by the transcript of the oral proceeding or by the written reasons that a judge would provide.
There had been some consideration given to including the requirement for written reasons in all cases. For Jordan-related and other delay reasons, that would have bogged down the process too heavily. That's why it covers off both options, including the recorded version.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you.
You don't have a lot of time, so I'll try to get to it quickly. This is a little bit outside of the actual bill, but when we studied it before, the head of the DisAbled Women's Network Canada talked about the importance of diversity on the bench. I just wondered if you could speak for a minute about the changes that have been made, so that the bench actually is more reflective—we're not there yet—of Canadian society.
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
We are trying to have a more diverse bench. I won't go into the detail right now unless somebody else asks me. The point of it is that people will feel more confident when they see a bench—or actors in the judicial system—that reflects them, however they conceive themselves, and they might share common experiences. It has been the case that shared experience is what's critical. That forms a bridge between the people who are formal actors in the judicial system, such as judges, and the people who appear before them. That bridge is absolutely critical to the confidence that people have in the system.