Evidence of meeting #61 for Status of Women in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was reasons.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Gillian Blackell  Senior Counsel and Acting Director, Policy Centre for Victim Issues, Policy Sector, Department of Justice
Uzma Ihsanullah  Counsel, Constitutional, Administrative and International Law Section, Department of Justice

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Because NDP-3 is inadmissible, shall clause 4 carry?

(Clause 4 agreed to)

Now we will talk about NDP-4.

9:05 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

My proposal is that Bill C-337 be amended by adding after line 18 on page 3 the following new clause:

4.1 The Act is amended by adding the following after section 74:

74.1 The Commissioner shall, within three months after the end of each fiscal year, prepare and publish on the Office of the Commissioner's website a report on the education in sexual assault law described in paragraph 3(b ), including any observations and recommendations that the Commissioner considers appropriate.

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Is there discussion?

9:05 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

The rationale is that we heard there is a need for the ongoing evaluation of the training for judges. This could be in addition to the annual report that's referenced in proposed subsection 62.1(2) of this bill.

There are new cases every year, so improving the training with new jurisprudence would be beneficial to the improvement of judges' training. We want to make sure there is a requirement that the training remain relevant. The commissioner could be the judge of that.

I'll leave it at that.

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Very good.

9:05 a.m.

Liberal

Anita Vandenbeld Liberal Ottawa West—Nepean, ON

I want to thank Ms. Malcolmson. I fully agree with the spirit of what this is trying to achieve.

One of the issues that some of the experts we've consulted with raised was the word “website”. Because it isn't mandated by law that there be a website, it's very hard to then mandate by law that something be on a website, because it doesn't exist. That creates some difficulties with this.

The report will be tabled in the House, and everything that's tabled in the House is made public, so this is actually already being achieved. Because of the fact that it is being tabled, it is being made public. It will be presumably on the parl.gc.ca website. That is already happening, and in order not to create some confusion on this, it's probably best left to have it tabled in the House.

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Ms. Damoff.

9:05 a.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

I'm fine.

(Amendment negatived)

(On clause 5)

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Now we move to amendment Liberal-3, and again I would inform the committee that, if amendment Liberal-3 is adopted, we cannot adopt amendment NDP-5 because of the line conflict.

Amendment Liberal-3 is moved by Mr. Fraser.

Would you like to speak to it?

9:05 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Certainly, I'll move the adoption of the proposed amendment Liberal-3.

Is it necessary for the record that I read it in or is the written copy acceptable?

9:10 a.m.

Conservative

The Chair Conservative Marilyn Gladu

The written copy is acceptable.

9:10 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Thank you very much, Madam Chair.

There are three components, essentially, that are important here, if I can take our eyes off the language and explain them in more general terms to begin with. Two are of a technical nature, and one is substantive. The technical amendments, I expect, will be easier for this committee to deal with as a matter of course, so I'll address them first.

The first, which you'll see in part (a) of the proposed amendment, is simply to achieve a coordinating amendment. Section 159 of the Criminal Code has been deemed unconstitutional. There's a bill before the House to actually remove it from the Criminal Code. This is simply to erase from the books a zombie law that has been deemed unconstitutional. I don't anticipate that will be a problem, but I'll leave it to the members of the committee to object if they see one.

The second theme of this amendment is in new proposed subsection 278.92(5) and is also with respect to the word “judge” as opposed to “court” under part (a) under the proposed section 278.92. The reason for these proposed amendments is that, under the common law, and I believe it's enshrined in the Criminal Code as well, there's not an obligation on a jury to produce reasons. By adopting this motion, we would be potentially running afoul of legal principles that I think we have no business interfering with. I expect this is something I would not have caught had I been drafting it, but when we ran it through some extra sets of eyes, this concern was raised, and I support it entirely.

The third and perhaps trickiest amendment—we had some conversations with other members of the committee, some department officials, and our legislative clerk—might give us some problem here, but the substance of this issue is really the requirement for written reasons. We heard compelling testimony actually from Professors Elaine Craig and Jennifer Koshan. I studied under Professor Craig while I was in law school, and I appreciate the need for written reasons for two main purposes. One, the exercise that a judge goes through in preparing written reasons improves the quality of the decision. There's no question that, when you take the time to write something down, you think it through, and you're less likely to make an offhand offensive comment, and I accept that.

The second reason, in my mind, is really about the access of interested audiences. I can think of a need for access to decisions for academics, for NGOs, for the press, for the litigants, of course, for the public at large, and for lawyers dealing with sexual assault matters who want to research the jurisprudence that's currently not being reported.

The tricky part today is that, if there's not a reporter sitting in the room, oftentimes these reports aren't made public. Generally speaking, I support the requirement for written reasons. I propose an amendment that I believe is similar in spirit to the amendment proposed by Ms. Malcolmson that I'll address in a moment, but my concern about having a requirement for written reasons in 100% of cases was borne out only weeks ago in one of the communities that I represent.

In the small university town of Antigonish, Nova Scotia, we have seen what I believe is the first decision of its kind in my province of a sexual assault charge against a university professor having been stayed under the Supreme Court of Canada's Jordan decision. If we specifically require written reasons in every sexual assault case, we will be adding a procedural step and presumably some additional delay, specifically to sexual assault cases, which will lead to, presumably, more people who could or should be convicted of sexual assault getting out without ever having their matter go to trial. I expect that is not the outcome that anyone on this committee wants, and it really becomes a matter of how we address it.

Ms. Malcolmson, I initially took a shot at drafting this and had almost identical language about whether the judge considers it in the interest of justice to do so. Upon further reflection, the “interests of justice”, in my understanding, is a legal term of art that can have a specific meaning in different sections of the law. For example, if you're considering whether to allow a third-party intervenor to take part in litigation where they don't personally have an interest, there are concerns about whether they bring a new perspective, whether they have something of value to add. I have concerns that my initial thoughts as to the appropriate language, which are reflected in your proposed amendment, will lead to unintended consequences that we as a committee have not fully thought through and have heard no evidence on.

I took a shot—the best I could—at some plain language writing that would suggest that, despite the proposed subsection requiring written reasons, the “reasons for a decision need not be given in writing if the judge does not consider it practicable to do so.” This would require, in my mind, that the judge make an assessment, and they have to decide that it is not practicable for them to offer written reasons.

The real reason I wanted to include this is that of delay and the Jordan decision under the Supreme Court of Canada. I think this will allow a judge to say that if this is going to literally let an accused person go free without trial, that's unacceptable, and if judges can give an oral decision in shorter order to ensure justice is served, they will have the ability to do so.

However, to protect against the potential trend that would see judges do this as a matter of course, because they don't feel like it, I inserted proposed subsection (3) and proposed subsection (4) that says that if proposed subsection (2) applies—meaning if the judge decides they can give oral reasons—the court shall prepare a paper or electronic transcript. I've said paper or electronic now. It's not actually in this, but this is something I expect will need to be borne out in further discussion with the assistance of the clerk, of the reasons delivered orally or ensure access to an audio recording of the oral reasons. Then under proposed subsection (4), “Any written reasons given or transcript prepared under subsections (2) or (3) shall be entered into the record of proceedings”.

After a discussion we had with a departmental official and briefly with the legislative clerk, what I really hope we land on here, as someone who worked as a lawyer and relied on legal research tools in my career before politics, is an electronic site on which we can search the decisions, even if they're not officially published in the way that written decisions typically are.

We run into some serious difficulties if we require that a court develops a database, because there are constitutional concerns under the sections 91 and 92 divide that put the administration of justice squarely within the purview of the provinces. If we require the provinces to spend money on the administration of justice in federal legislation, the clause could be struck down entirely as being unconstitutional and render moot the exercise that we're going through and the purpose of this proposed amendment.

I would suggest that the language I've put forward may not be perfect, and if the chair would allow a brief suspension to discuss with members of the different caucuses represented here, the legislative clerk, and potentially, a department official with expertise on this specific matter, I think the legislation would be significantly improved.

Madam Chair, with your permission, I'd recommend we suspend for a few minutes to sort out the details.

9:15 a.m.

Conservative

The Chair Conservative Marilyn Gladu

I see there is agreement to do that, but I want to bring to the committee's attention that the amendment changes have only been brought in English. I would need unanimous consent of the committee, since things are normally provided in English and French, to consider them only in English.

Do I have the unanimous consent of the committee to do that?

9:15 a.m.

Some hon. members

Agreed.

9:15 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Excellent. Okay.

We'll suspend and I'll look to you guys for an indication of when you've come to a conclusion.

May 11th, 2017 / 9:30 a.m.

Conservative

The Chair Conservative Marilyn Gladu

We're back discussing Bill C-337 on the clause-by-clause.

We're fortunate to have as help for us today from our justice department, Gillian Blackell and Uzma Ihsanullah.

Mr. Fraser, we'll go back to you.

9:30 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Thank you very much for indulging us with a brief suspension, Madam Chair.

After a quick huddle with all parties, and with the help of our clerk and with department officials as well, I believe if you seek it you'll find unanimous consent to withdraw the motion I've had on the floor and to introduce a new motion, which we've had the opportunity to discuss but will need to further debate.

9:30 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Do I have unanimous consent from the committee to withdraw Liberal-3?

(Amendment withdrawn)

We'll go back to you, Mr. Fraser.

9:30 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

I do have a proposed amendment, which doesn't have a fancy title like Liberal-3. However, I will provide a copy in writing once I read it for the benefit of the crowd.

Also I believe the French version is available as well, but I handed my copy to another member of the committee. Once I read the English version into the record, I'll share both copies in writing with you and then have a few questions for our department officials.

The new amendment would read that Bill C-337, in clause 5, be amended by replacing lines 21 to 24 on page 3 with the following: “Reasons, 278.92 (1) In proceedings for an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272, or 273, the judge shall provide reasons for a decision that a person is”. As well, it would amend clause 5 by adding, after line 30 on page 3, “Record of reasons”, and this is the key part that differs from the previous iteration, “(2) The reasons shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.”

Then, similar to what we had previously, it says, “Proceedings before a judge, (3) Subsections (1) and (2), apply only in proceedings before a judge without a jury.”

9:35 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

The clerk has it now.

9:35 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Can we hear some commentary from our justice department officials?

9:35 a.m.

Gillian Blackell Senior Counsel and Acting Director, Policy Centre for Victim Issues, Policy Sector, Department of Justice

Thank you, Madam Chair.

First of all, I would like to thank the honourable member for proposing that the requirement for written reasons be replaced by language that is already reflected in the Criminal Code. It is reflected in section 278.8 as well as 276.2 with regard to third party record application hearings as well as rape shield application hearings. Also, they require either written reasons, or if those written reasons are not possible, that the reasons be entered into the record of the proceedings. Therefore, they would be made available and it would be clear for the parties and anyone else who is interested in having the information about how that decision was rendered. That replies to the evidentiary provisions.

However, the proposal here would have it apply to all the sexual assault matters that are enumerated in this bill, and therefore, would expand it without requiring written reasons in every case, which, as noted, could have significant implications for the effectiveness of the administration of justice and consequently for these cases of sexual assault before the courts.

These provisions that already exist in the code have withheld constitutional scrutiny. They have been maintained.

There is a desire to remain with existing language in the standards for drafting in the code. As they have already been interpreted, it makes it easier to use the similar language within the code.

They also remain within the constitutional mandate of Parliament for criminal law and criminal procedure and do not stray into the administration of justice by specifying exactly how the reasons would then be dealt with once they are on the record. They have been made available in the application of these provisions because the courts know there is an interest in them and a specific requirement for those reasons to be transcribed and available on the record. As a result they are regularly uploaded onto CanLII, which is a free website with a database of over a million judgments and decisions from all the Canadian courts, as well as laws. That website is maintained through the Federation of Law Societies in collaboration with a private company.

9:35 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Excellent. Thank you very much.

We'll go now to Ms. Damoff.

9:35 a.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

I wonder if you could clarify a couple of things for me.

Everyone around this table and the drafter of the bill want to achieve that we have written decisions where possible. We've heard testimony—and I don't recall who said it—that it's become public in the past because a reporter was in the room. That's what we're trying to avoid. We also want to avoid a huge cost to the survivor or to the media, or to anyone else who wants to investigate these decisions. That's the end goal.

I understand from our conversations that you have very serious constitutional concerns about the wording we had put in, and that this would achieve our goal without.... We are not allowed to force the provinces to spend money constitutionally. The way we'd worded it in the past would have done that.

I guess I want an assurance that this new amendment would be constitutional, but it would also achieve the goal that all of us want, which is to ensure that written decisions are available and that there would not be a huge cost to the people who are trying to access the decision.

9:35 a.m.

Uzma Ihsanullah Counsel, Constitutional, Administrative and International Law Section, Department of Justice

Good morning, Madam Chair.

I understand the question to be on whether the amendment as proposed will achieve the goal of the committee without straying into an area that is beyond Parliament's jurisdiction. The question here is staying on the side of what criminal procedure is in these circumstances and not straying into the area of the administration of justice.

The amendment that has been proposed that reflects other wording in the Criminal Code has been upheld as constitutional. The reason is that it stays on the side of criminal procedure, which Parliament does have jurisdiction over. To make it a requirement for courts administration to publish decisions would be to stray into the area of the administration of justice. There is some very old and well-established case law from the Supreme Court that tells us that Parliament cannot require provinces to spend money within their area of legislative jurisdiction.

A relatively recent case, from 1982, which was in the context of the Criminal Code, was regarding a provision that allowed a judge to require a municipality to support a young offender while they were serving a sentence. It was struck down as unconstitutional because that was considered to be an area in the provincial jurisdiction. Parliament had no business requiring a municipality to be spending money in those circumstances.

I think the concern that has been raised here is that while we can require reasons to be provided in the record of the proceedings, and essentially that is an area of criminal procedure, the provision is saying that the record of this particular trial is not complete without a record of the reasons, whether they be oral or whether they be written.

What happens after that is within provincial jurisdiction. Certainly court files are public, and when a transcript or written reasons are available, as Ms. Blackell mentioned, there are private companies that pick them up and they are published. However, it is beyond Parliament's jurisdiction to require that to be done by the courts themselves.