Justice Committee on Oct. 27th, 2020

[The Chair, Liberal, Iqra Khalid]

We have Mr. MacGregor, then Mr. Fortin and Mr. Virani.

Go ahead, Mr. MacGregor.

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

Thank you, Chair.

Hello, everyone. It's good to see all of your faces again.

I will be supporting Mr. Fergus's amendment. I'll address Mr. Fortin's concerns first.

I did a quick search of the word “systemic” in witness testimony. The word “systemic” is used multiple times by witnesses who appeared before our committee when this bill was being studied in the first session. I think it's widely understood that this country does have a systemic problem when it comes to discrimination and racism. It's not a term I have problems understanding, and I am sitting here as a white male. I think it's broadly understood and important to have there.

Second, to Mr. Moore's points, I would also draw his attention to witness testimony from the first session. There were a number of witnesses who did in fact tell our committee that the fact that social context was not defined was problematic. We could go through a laundry list of what social context means, but I think Mr. Fergus has done it correctly by using the terms “systemic racism” and “systemic discrimination”. Those two terms are broad enough to encompass a lot of the discrimination factors that people of colour and people of different sexual identities face on an everyday basis. We would be kidding ourselves if we thought those weren't tied up to sexual assault and the problems that many women and many people of different backgrounds face on a daily basis with our justice system.

On the two objections that have been raised, I would say they are in fact addressed by witness testimony that this committee has already heard, which I think is broadly supportive of the amendments put forward by Mr. Fergus.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. MacGregor.

Monsieur Fortin, you are next on the list.

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

Thank you, Madam Chair.

I raised my hand because I didn't quite understand what Mr. Fergus meant at the end of his comments. He seemed to be saying that he would support the idea of narrowing the meaning. I think he was agreeing to remove the word “systemic”. Did I understand him correctly?

I'm being told that this was not the case. In that case, I reiterate that this is a problem.

I know the witnesses have talked about it. In fact, everyone is talking about it all over Quebec, and I am convinced that it is the same in the rest of Canada. The word “systemic” has become as fashionable as some of the other words that have been censored and only referred to by their first letter.

That said, we are talking about amending a law. Judges are going to have to commit to receiving training in sexual assault law and social context. There is no problem with that. However, it is now being specified that this training will also have to address systemic racism and discrimination. I don't think there is a real desire to require judges to take training on the concept of systemic discrimination. Rather, it is up to parliamentarians, when passing laws, to ask themselves if there really is systemic discrimination in our organizations.

I agree that judges, who have to interpret legislation, should be trained to be aware of racism and discrimination. I think this is a good thing. However, you want to introduce the word “systemic” in a law, which is a vague notion. As Mr. Fergus himself said, there is no unanimity, but there is some consensus on that. If the committee is aware that a word is not very clear, as legislators we should avoid introducing it into legislation because it will necessarily be challenged in court. There will always be a lawyer who will interpret that word in his or her own way.

If what we want is for judges to be educated about discrimination and racism, then let's say so, and let's avoid introducing concepts that are too confusing to achieve unanimity when the time comes to interpret them.

[The Chair, Liberal, Iqra Khalid]

Thank you, Monsieur Fortin.

Go ahead, Mr. Virani.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I have a couple of points.

In response to what Monsieur Fortin is raising, I would simply state that the notion of “systemic” is quite critical, and it's a term that's being used appropriately right now by many elected representatives and other individuals.

I would point everyone's consideration to the way Senator Murray Sinclair put it in the last Parliament when we were studying religious discrimination and systemic racism in the heritage committee. He said, “systemic racism is the racism that's left over after you get rid of the racists.” That's a very elegant way of talking about the fact that there is something very different in an individual act motivated by an individual who has mal-intent, versus rules and norms that pervade institutions.

I'll give a tangible example to everyone, because it went right through this justice committee, when we made a change to peremptory challenges of jurors. These are challenges where you can just look at the juror and decide you don't want that person on the jury, without having to motivate why; you've enabled a form of racism in the justice system that is systemic. By eliminating that in the last Parliament's Bill C-75, we tackled a manifestation of systemic racism.

I do think it's very critical, and I would echo the comments you heard from Mr. Fergus and from Mr. MacGregor.

With respect to Mr. Moore's point, I think it's our role to hear the witness testimony and then to gather from it and glean from it proposed amendments, which is exactly what we've done here. The terms “systemic” and “systemic discrimination” were used on a number of occasions by a number of witnesses, thus the formulation of the amendment that you see before you.

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Virani.

Mr. Fergus, you're next.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you, Madam Chair.

I hope we were able to clarify my comments to Monsieur Fortin. I did not wish to give the impression that I would be willing to move off the word “systemic”. No. I think it's a very important word, for the reasons that Mr. Virani just pointed out.

Second, just because there is a large consensus, that doesn't mean it's unanimous. However, there is a large consensus, I think, across the country as to the use and meaning of the words “racism” and “systemic discrimination”. I liked what Mr. Virani pointed out in what Senator Sinclair raised as an example.

I would offer another example. Studies have shown that Black or indigenous people are no more likely to commit a crime, all factors kept the same, than non-indigenous or non-Black people, yet when you take a look at our incarceration populations, you will find that Black Canadians are three to four times more overrepresented in our carceral system than non-Black Canadians. For indigenous people, it's worse. It's seven to eight times their demographic weight.

We know, or we strongly suspect, that there are no racists who are administering justice throughout the entire system, even including judges, yet there is something that is going on that's leading to these wonky results. That is the systemic nature of discrimination and racism at work. These are the things that force us to ask these uncomfortable questions, and by including this in the training, we are just heightening people's awareness of it so that they can get at the things they really can't normally see. That's the insidious nature of systemic issues.

I hope, with those examples, that we can move on and achieve consensus around this table that these are important elements to include in this bill.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Fergus.

I have Mr. Maloney next on the list.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

I support the amendment as well, for the reasons that have been outlined by others, and Mr. Fergus in particular.

As for Mr. Moore's concerns, there was evidence heard by the committee back in February. This isn't identical to the bill that was debated and passed by the House last year—you're quite correct—but the evidence we heard in February I do not believe was available last year, and circumstances have changed. My understanding is that there is almost universal support for this language in this bill, beyond this committee, so I am quite comfortable with that. I respect your concerns, but I am comfortable that the amendment doesn't cause any difficulty because of that.

As for Mr. Fortin's comments about using the word “systemic”, his point was that this may be crossing a line because we're telling judges or signalling to judges—perhaps that's a better way of putting it—what they should be thinking and doing.

I think that argument is more universally applied to this bill, but we've crossed that threshold, Mr. Fortin, and I think the use of the word “systemic” does not cause any difficulty. It's not in any way indicating to judges...nor would judges interpret it as instructionary, if I can use that word. In fact, I think people who are troubled by the suggestion that there is systemic racism should not be worried, because I think that in the context of the courses they take, the pros and cons of all these arguments will be fleshed out. For that reason, I think it's a good move to include it in the amendment and, as I said, I am supporting it.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Maloney.

I have three more people on the speakers list before I call the question on the amendment that is LIB-1.

We have Mr. Battiste, Monsieur Fortin and Mr. Moore.

Go ahead, Mr. Battiste.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you very much.

As an indigenous person who is coming to you from an indigenous community, I really do support MP Fergus's wording around this. I do not feel that “systemic racism” is a popular term that we're using because it's popular recently. I believe it's an acknowledgement of what's going on in society and an acknowledgement and a realization that things need to be done.

From the judges' perspective.... Three years ago, I was the treaty education lead for Nova Scotia and was invited by all of the Atlantic federal judges to give a one-hour presentation on reconciliation. These are things that judges are currently doing.

What I think MP Fergus is doing gives more clarity to what was meant by “social context” in the past, and it's not changing the legislation. It's just putting more clarity into the usage of “systemic racism” and “systemic discrimination”. I applaud him and will support him on this.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Battiste.

Mr. Fortin, the floor is yours.

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

Thank you, Madam Chair.

I want to make three points.

First, I want to correct one thing. Earlier, my colleague Mr. Virani said that peremptory challenges in jury trials constitute systemic racism. I'm sorry, but this issue has nothing to do with systemic racism. When counsel challenges a juror, the reason is that counsel believes that the person wouldn't be appropriate under the circumstances. It may be because of the person's gender or race. It may also be because of their professional training or criminal record, or because they've been a crime victim. Counsel will challenge a prospective juror for any number of reasons, and these reasons have nothing to do with systemic racism. It's something completely different. We must understand this. Otherwise, we'll get nowhere. This was my first point.

Second, the purpose of the bill that we're studying is to ensure that judges receive training on sexual assault. We've been working on this bill for years. It was originally tabled by Ms. Ambrose from the Conservative Party. The Bloc Québécois supported this bill and continues to do so. However, the proposal now is that the bill should go beyond training on sexual assault. The bill should also address racism and discrimination, which are described as “systemic”. We're a long way from the original purpose. We went out to buy potatoes and we're coming home with strawberries. I'm sorry, but this doesn't work. I don't think that we can do this.

I have a third point. The proposed bill concerns sexual assault. If we also want to talk about racism and discrimination, that's fine. It may be appropriate to do so. However, we'll need to create another bill and hear other witnesses speak about this issue. I agree with what Mr. Moore was saying earlier. None of the witnesses who appeared before us came to talk about systemic discrimination or systemic racism.

Again, we're talking about training for judges on sexual assault. Unfortunately, victims of sexual assault who must testify in court after filing a complaint don't always receive the full attention required in light of the crime against them. This is what we wanted to fix. We wanted to make sure that judges understand that a sexual assault victim, male or female, who must testify should be given special consideration in light of the crime committed.

Racism is a broad topic. I'm not saying that it's unworthy. Racism exists and discrimination exists. Should it be addressed? I think so. However, we can't combine this topic with training on sexual assault. We're moving beyond the scope of the bill.

If we want to do this, then we'll reopen the discussion, hear from new witnesses and gather more briefs. Personally, I'll put forward much more specific arguments on the topic.

Today, I'm here to talk about training for judges when it comes to sexual assault trials.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Fortin.

I have Mr. Moore, and then I will call the question.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

With regard to addressing some of the comments made, I'm going to be supporting Mr. Fergus's amendment.

The concern I have is that it is important for us, I believe, in the future, if we're going to be bringing in amendments.... It's not enough to just hear witness testimony on the generality of what we're trying to deal with, but it's important to hear testimony on the specifics of the amendment. There are going to be diverse groups that could comment specifically on amendments that are being proposed, and what the other parties have done is to limit the witness testimony we can have.

I would love to hear some testimony on this, but we're not going to do that, so I will make that point and then carry on, Madam Chair.

I want to ask a question on the issue of admissibility of various amendments coming up. Will you be advising us in advance of your views on admissibility? Normally that would be the case. I just want to check, as we proceed, if you'll be advising us in advance on whether various amendments are within the scope of the bill.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Moore.

Just for clarity, I do consult with our clerk and the legislative team with respect to whether something is procedurally within the scope of what is being proposed. Also, substantially, it is up to the person who is questioning the admissibility of a certain thing to make their argument, and I will make a ruling after the fact. That is kind of how it's been worked out in the past, and I had my conversations with the clerk as well. I hope that clarifies it for you.

I will put LIB-1 to a recorded vote. Can I see thumbs-up if you want to do a recorded vote?

Mr. Clerk, please do the recorded vote by alphabetical order by member.

(Amendment agreed to: yeas 10; nays 1 [See Minutes of Proceedings])

(Clause 1 as amended agreed to: yeas 10; nays 1)

(On clause 2)

Thank you, Mr. Clerk.

Now we move to clause 2, and we'll first go to PV-1.

Just to clarify for everybody, if PV-1 is adopted, LIB-2 cannot be moved, and that is as stated in House of Commons Procedure and Practice: “Amendments must be proposed following the order of the text to be amended. Once a line of a clause has been amended by the committee, it cannot be further amended by a subsequent amendment as a given line may be amended only once.

We'll go on to PV-1.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a point of order.

[The Chair, Liberal, Iqra Khalid]

Yes, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Are we voting in alphabetical order?

[The Chair, Liberal, Iqra Khalid]

Yes.

[Rob Moore, Conservative, Fundy Royal, NB]

How is Fergus last to vote? Am I missing something?

[The Chair, Liberal, Iqra Khalid]

I didn't even realize.

Mr. Clerk.

[The Clerk]

It's a good question.

Mr. Fergus is last because he's replacing Mr. Zuberi, who is usually last. If it's okay with the committee, with substitutes, I usually have them voting for the person they are substituting for.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Clerk.

Is that okay with everybody?

Mr. Moore, are you comfortable with that?