Justice Committee on Oct. 27th, 2020

[Philippe Méla]

Thank you, Madam Chair.

To understand exactly how paragraph 2 would read after the amendments, I'm going to read it to make sure I understand it properly.

It would be for proposed subsection 62.1(2), “Tabling of report”:

The Minister shall cause a copy of any report received to be tabled in each House of Parliament on any of the first 10 days on which that House is sitting after the Minister receives the report.

Is that correct?

[The Chair, Liberal, Iqra Khalid]

That is my understanding.

Monsieur Fortin, can you confirm that, please?

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

I can confirm that this is also my understanding. This seems consistent with the idea behind this provision.

[Philippe Méla]

Thank you, Mr. Fortin.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

I don't see anybody else wanting to speak to it, so I will call the question on Monsieur Fortin's amendment.

Mr. Clerk, would you record the vote, please?

(Amendment agreed to: yeas 11; nays 0)

The amendment proposed by Monsieur Fortin carries. Now I call the question on clause 3. Shall clause 3 as amended carry?

Mr. Clerk, can you please record the vote?

(Clause 3 as amended agreed to: yeas 10; nays 1 [See Minutes of Proceedings])

[The Chair, Liberal, Iqra Khalid]

We have limited time left as we go into the last bits of the clauses. I ask the committee if it's okay with everybody that we carry on a little bit further so we can get through the complete clause-by-clause review for Bill C-3.

I see thumbs up. Thank you. I appreciate that.

(On clause 4)

Going into clause 4, NDP-2 is being proposed.

Mr. MacGregor, would you like to speak to that? Anybody else who would like to speak to it can raise their hands also.

Mr. MacGregor, go ahead.

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

Thank you, Chair.

It's just a slight change here to line 8 on page 4 of the bill. This comes from the testimony of Ms. Rosel Kim, who is the staff lawyer at the Women's Legal Education and Action Fund. In her opening statement, she talked specifically about clause 4 as it relates to the reasons. She suggested directly in her opening statement that “where written reasons are not available in a sexual assault trial, the transcripts of the decision only, and not a transcript of the entire trial, should be...available on publicly accessible domains.”

Following her recommendation, I have decided to come up with an amendment to that final line to change it to “provided in writing and made publicly available.”

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. MacGregor.

Ms. Damoff is next, unless, Mr. Virani, your hand is not up by error. Do you want to speak? No.

Ms. Damoff, the floor is yours.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Madam Chair.

I appreciate being able to speak to this at committee.

I was the vice-chair of the status of women committee when we studied Bill C-337 when it came to Parliament. I have a signed copy of that bill in my office.

I want to give a shout-out to Ms. Ambrose and to the members of the status of women committee, because we really did a lot of work collaboratively across party lines.

Whether to include written reasons was an issue we discussed at length. When the bill first came to us, we amended it to say that reasons, if they were not recorded, should be provided in writing. I wonder, Madam Chair, if I could read some of the submissions that we received in April of 2017.

Justice Kent, whom I know, appeared before the justice committee. In 2017, she said that if it “allows for audio recordings to be available, that makes a lot more sense.”

In 2017, we had the Office of the Federal Ombudsman for Victims of Crime saying, “ensuring that new legislation does not cause further delays in the criminal justice system is important – something that should be considered with respect to the requirement for a written decision.”

Finally, in a submission from the Native Women's Association of Canada in 2017, they said, “While justice needs to be served as expeditiously as possible, judges should not unreasonably extend the incarceration of Aboriginal offenders while they await the conclusion of trials due to the necessity of written reasons. ... [Generally] Aboriginal offenders fail to be granted bail and are left incarcerated during their trials.”

Madam Chair, the Supreme Court, in R. v. Jordan, set time limits for the courts to give their decisions. While the spirit behind the member's amendment is worthy—and one that I know caused us a great deal of discussion when we were at the status of women committee—at the end of the day, I think it puts an undue burden on the judiciary and in fact could have a negative impact for survivors of sexual assault who want to see the reasons. The recordings are available. That was a concession that we made previously to ensure that there was something available for survivors to have access to.

I just wanted to give that context. While I can't vote, I would not be supporting it if I had the ability to vote. I think it isn't the right thing to be doing.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you so much for that, Ms. Damoff. Thank you for all of your efforts over the past number of years on this very important topic.

Mr. Moore, I have you next on the list.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Madam Chair.

Thanks to Mr. MacGregor for bringing this forward.

I don't want to put them on the spot, but I know we have lawyers here from the Department of Justice.

Is there any unintended consequence, perhaps, of this amendment, or any flags that this amendment would raise in the administration of justice?

[The Chair, Liberal, Iqra Khalid]

I will turn to our witnesses. Could you please respond to Mr. Moore's inquiry?

[Gillian Blackell, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice]

This certainly is a well-intended proposal. The thing is that it might not really be necessary, given that the open court principle is already a fundamental principle in the Canadian criminal justice system and in the justice system as a whole. That is already covered by the ability to attend and to have access to reasons, which is part of the changes in this particular bill, including that the reasons be on the record or written.

Including “made publicly available” is a form of codifying the open court principle, which is not necessary and in fact could cause some confusion, given the maxim that the legislator does not speak in vain. It could, as a result, give interpretation that its exclusion elsewhere in the code means that the principle does not necessarily apply in other contexts.

In addition, the requirement for reasons relates directly to the federal head of power in terms of the criminal law, as these reasons are necessary for the purpose of appeal. However, it's quite different to then move into an issue of how these reasons become publicly accessible, which is a matter of administration of justice, which falls within the jurisdictions of the provinces and territories, so it may be straying beyond federal jurisdiction to some degree.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Ms. Blackell.

I have Mr. Virani next on the list.

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

I want to reiterate some of the points that Ms. Damoff made and also the points just made by the departmental officials, which were very helpful.

To my mind, the open court principle is sufficient to address this baseline proposition about the accessibility of the reasons. The text of the bill as it's currently drafted indicates that where the matter is not an open proceeding and where there is no record, the reasons would need to be provided in writing, so my view would be to oppose this well-intended idea and to stick with the current bill in its current format.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Virani.

Mr. MacGregor, you can speak to it, and then I'll call the question.

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

I have a question for our legislative officials.

When Ms. Kim was suggesting this, she said that: “As the bill currently stands, any oral judgment entered into the record will still require someone to pay for and order the trial transcript, which is costly and can be time-consuming.”

Are officials able to speak to the point she made there? What she was stating in her opening statement seems to go against the open court concept, because some people will still have a monetary burden in accessing these records.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. MacGregor.

Ms. Blackell, would you like to speak to that?

[Gillian Blackell]

It is true that the courts have different ways in which they make their information available. Most judgments will be posted either on the court websites or through CanLII, which is a free, accessible, web-based database with Canadian judgments on it. However, short of an actual decision—and not all decisions will necessarily be published—the courts can make their reasons and other aspects of the court record available through the court registry office.

How the courts do this is really within their jurisdiction, and they vary. Some have a fair bit available. Three others use services for transcribing the testimony, so the transcripts may be costly, depending on the services available. However, this is not a matter for the federal Parliament in this particular context. That's really a matter for the administration of justice.

Certainly courts are aware and do their best to try to make as much available as possible, but there are associated costs in doing so.

[The Chair, Liberal, Iqra Khalid]

Thank you so much for that, Ms. Blackell.

Having exhausted the speakers list, I'll call the question on NDP-2. Shall NDP-2 carry?

Mr. Clerk, please record the vote.

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

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Clerk.

NDP-2 is defeated. The question is now on clause 4.

There are no amendments to clause 4 at this time. Shall clause 4 carry?

(Clause 4 agreed to: yeas 11; nays 0)

[The Chair, Liberal, Iqra Khalid]

I have one amendment, PV-4, regarding the preamble. However, because PV-1 was defeated, PV-4 is inadmissible, as there is no amendment to the bill to justify amending the preamble.

Shall the preamble carry?

Mr. Clerk, please record the vote.

(Preamble agreed to: yeas 11; nays 0)

Shall the title carry? Do we have unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Liberal, Iqra Khalid]

Shall the bill as amended carry?

[Some hon. members]

Agreed.