Debates of Nov. 16th, 2020

Judges Act

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Madam Speaker, the member mentioned that the former version of this bill was delayed in the Senate for over two years. I cannot help but think about all the people this bill would have helped if it had been passed expeditiously by that place.

I wonder if the hon. member could speak to what that says about the change we still need to see in wider society, in our country and among ourselves as parliamentarians and those who sit in the Senate.

[Ruby Sahota, Liberal, Brampton North, ON]

Madam Speaker, in my position as chair of the procedure and House affairs committee, I have become aware recently that there is work going on in the other place to address this issue to ensure that the delays we saw when it came to this bill do not happen again and that bills that pass unanimously in the House of Commons, like private members' bills, should be given a time limit within the other place to ensure we have efficiency so the elected representatives and the will of the people is satisfied.

I look forward to working with the senators who are looking at making these changes and improvements so private members' bills are treated like government legislation and given the priority they deserve as well, especially when there is unanimous consent across party lines. It is not often we have that and there should be no reason for lengthy delays such as what we saw with this bill.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I appreciate the opportunity to engage with my colleague again on both her speech and on her earlier answer to my question.

My question pertains to Crown copyright. The Speaker of our House has the ability to say where Hansard and our committee testimony can be protected by the copyright powers given to him under the Crown copyright. The same goes in every province, where the courthouses can set up how they will let their rulings be accessible to the public. For example, in some courthouses, people must present their requests in person, which COVID-19 makes very difficult. Other provinces allow all the documentation to be available online. Right now we do not have that.

Instead of the member talking about the investments the government has made, does she believe that the federal government can make a useful measure and help this issue to step forward so every citizen in Canada will have the same access to the same level of documentation? Actually, there is a bill on the Order Paper by an NDP member to abolish Crown copyright. Does she believe this would be a good thing for our citizenry?

[Ruby Sahota, Liberal, Brampton North, ON]

Madam Speaker, I appreciate the question, but it is not really on the topic of the debate tonight. I would be interested in looking into the matter and developing a proper stance on it. However, without having had been able to study the issue, understand it completely and weight the matter, I do not think giving an opinion would necessarily be fair.

The issue we are talking about today is one that we have been trying to work on for a very long time, but there has been very little improvement in this area. We have seen improvement in a lot of other areas of law. I really hope we do better for the victims of sexual assault crimes. At this point, only 5% of sexual assaults are brought to the attention of authorities and of that 5%, only 12% ever result in convictions. These are extremely sad numbers and we must do something—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The hon. member for Etobicoke Centre.

[Yvan Baker, Liberal, Etobicoke Centre, ON]

Madam Speaker, I wonder if my colleague could share with the House how she would describe the benefits of this bill if she were speaking to one of her constituents. I think her speech was thoughtful and covered a lot of examples. She offered a lot of insight, but I think a lot of times my constituents want to understand how this will touch their lives or how this will touch those who have been victims of sexual assault or sexual abuse. I am wondering if the member could share that with us today.

[Ruby Sahota, Liberal, Brampton North, ON]

Madam Speaker, honestly, a lot of my speech today is inspired by the people I have met in this role and of course by my past experiences and reading about the experiences of others. The experiences I have shared today are no different from the experiences of my constituents and I am sure of the member's constituents.

I am speaking from my constituency office right now, and often there are women right in the seat in front of me who want to talk to me about the violence or the sexual abuse that has occurred in their lives, whether at a workplace or at home. I do not know why some people feel more comfortable coming to a woman. I have also had people from other ridings come to me to talk about the matter.

Many times they make the decision not to report. They make the decision not to go forward to trial. However, there are many who do report, which takes a lot of courage. I always advise them to report the matter. I think it is the most important first step they can take, but many do not go to trial because they have heard stories over and over again about the insensitivity they would face at trail. I think that is going to make a big difference—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Resuming debate, the hon. member for Sherwood Park—Fort Saskatchewan.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, it is a pleasure for me to join the debate on Bill C-3. I have really appreciated the opportunity to hear many of the excellent speeches given by colleagues on all sides about this important piece of legislation. For me, it certainly underlined the importance and value of Parliament.

When we have these discussions about listening to victims and understanding what survivors have experienced, it gives us an opportunity to recognize those situations. I think the debate itself, not just the passage of the legislation but the conversations that come out of it, provides a great deal of benefit as well.

Some of the points about process have been particularly important. Picking up on something that my colleague from Brampton North said earlier, many good ideas come forward from private members' bills, but opportunities to bring private members' bills all the way through the process are relatively limited. I was involved in a private member's bill that received unanimous consent in the House and in the Senate, but in slightly different forms, and the reconciliation never took place before the next election.

I appreciate the fact that this has now become a government bill, but it does underline a bit of a structural challenge: It is much harder for us to move good ideas forward that come from members of Parliament who are not in the government, even if the ideas have very wide support across this place.

I had the opportunity to speak in support of this bill at second reading, so I want to briefly summarize some of the points I made at that time. I will then take my arguments in a bit of a different direction. I want to talk a bit about building up confidence and recognizing some of the limitations of this bill. I have the honour of serving as the shadow minister for international development and human rights, so I also want to share some thoughts about the international context we are operating in when it comes to combatting sexual violence and what lessons we might take from this conversation for our engagement internationally. I think there is a lot there. I think there is a lot we can learn from and apply to our international development and to our work on promoting human rights around the world that specifically comes out of this conversation.

The bill in front of us, Bill C-3, requires those seeking to become judges at the federal level to agree to undertake education with regard to sexual assault law and social context, essentially committing themselves to becoming aware of and educated about issues around sexual assault. This is aimed at responding in particular to cases where judges have made some very insensitive comments and—

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, I rise on a point of order. The interpretation has been working only intermittently or not at all for a while now. It is impossible to understand.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

I do not think the member is wearing the proper microphone for the interpreters. The interpreters cannot follow him.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I do have a lapel mike on, which is right by my mouth, so I can try to adjust it.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The interpretation does not work at all.

The hon. member would not have his headset, would he?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I do, but it will probably take me about five minutes to transfer the set-up. If another member would like to speak in the meantime, they could.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Does the hon. member have unanimous consent to do an exchange, giving the hon. member for Mississauga East—Cooksville the opportunity to do his speech now?

[Some hon. members]

Agreed.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The hon. member for Mississauga East—Cooksville.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, I know that technology can always be a challenge, and we want to make sure that our interpreters are able to hear what we have to say so that it can be provided in both official languages.

Today I will be sharing my time with the member for Vaughan—Woodbridge.

I am very pleased to speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code. This is a critical piece of legislation that is necessary to ensure that judges understand the context in which offending occurs.

Bill C-3 would amend the Judges Act to require candidates seeking appointment to a provincial superior court to commit to participating in training related to sexual assault law and social context. Thanks to amendments made by the Standing Committee on Justice and Human Rights, candidates must also commit to participate in training on systemic racism and systemic discrimination. The bill would also require the Canadian Judicial Council to ensure that those knowledgeable in the field, potentially including sexual assault survivor organizations, are consulted in the development of this new training.

The bill would also assist in ensuring transparency in judicial decision-making by amending the Criminal Code's sexual assault provisions to include a requirement that judges provide reasons for their decisions, either in writing or in the record of the proceedings. This requirement complements existing legal requirements for reasons including specific obligations for judges to provide reasons in sexual history evidence and third-party records application hearings.

Allow me to explain why these amendments are so critical to a fair and effective response to sexual assault, which we know disproportionately impacts women and girls. Canada has come a long way in this regard. We have one of the most robust sexual assault legal frameworks in the world, but we must not forget the myths and stereotypes to which Canada's existing legal regime responds, nor the fact that those very same myths and stereotypes persist to this day. For example, pre-1983 sexual offending laws were repealed and replaced with “affirmative consent”, the model we have in place today.

The previous laws accepted as a fact, first, that a complainant who fails to resist is consenting and, second, that a complainant who consented to sexual activity with the accused before an alleged sexual assault likely also consented to any subsequent sexual activity. It is hard to believe that this was in place before 1983 until changes started to be made, like the changes that we are looking to make through this bill.

We now know that myths and stereotypes like these are false and distort the court's ability to seek the truth. We also know that these myths and stereotypes have a detrimental impact on victims, who are overwhelmingly women and girls, and that their impact is compounded when they intersect with other discriminatory stereotypes. In particular, they deter women and girls from coming forward to denounce their assailants, which means that those assailants cannot be held accountable.

Statutory rules of law and Supreme Court of Canada jurisprudence now clarify that myths and stereotypes about sexual assault victims have no place in the courtroom, yet we continue to hear that such myths and stereotypes persist. Allow me to expand on examples I have just noted.

We have known for quite some time that a failure to resist is not the equivalent of consent. More than 20 years ago now, in its 1999 Ewanchuk decision, the Supreme Court of Canada clarified that the accused's belief that “silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”. That can be found at paragraph 51.

That rule is reflected in all of the Criminal Code's provisions that relate to consent, sections 273.1 and 273.2. Thanks to former Bill C-51's sexual assault amendments, which were enacted in 2018, this important principle has been further clarified. The provision that limits when an accused can raise the defence of honest but mistaken belief in consent is now clearly limited to situations where there is some evidence that the complainant communicated consent affirmatively through words or conduct. That is found at paragraph 273.2(c).

More recently, in its 2019 Barton decision, the Supreme Court of Canada aptly renamed this defence as the “defence of honest but mistaken belief in communicated consent”. I understand that many now refer to Canada's sexual assault framework as an “affirmative consent” model. This means that failing to resist is not relevant to the issue of whether the complainant consented or whether the accused believed the complainant consented. However, in 2014, the Alberta case of Wager, a trial court judge asked a sexual assault complainant why she did not squeeze her legs together if she did not want to engage in sexual activity she alleged was a sexual assault. This is unbelievable. It is unheard of that someone would make a comment like that and that we would hear it from a judge.

We have also known for quite some time that a complainant's prior sexual conduct is not relevant to the question of whether she consented to sexual activity that she alleges is a sexual assault. Originally enacted in 1983, the sexual history evidence provisions, sometimes called the “rape shield provisions”, were amended in 1992, almost 30 years ago, to ensure charter compliance. These provisions were upheld as constitutional in the Supreme Court of Canada's 2000 Darrach decision. They directly target two myths. The first of these is that a complainant who is sexually active is more likely to have consented to an alleged sexual assault. The second is that she is less worthy to be believed in respect of her claim that the sexual activity was non-consensual. These are sometimes called the “twin myths”.

The sexual history evidence provisions require an accused who wants to adduce evidence of the complainant's prior sexual conduct to bring an admissibility application to the court. The court then plays a gatekeeper function at the admissibility hearing to prevent the evidence from being admitted to infer one of the twin myths. Former Bill C-51 strengthened these provisions. Specifically, it clarified that communications for a sexual purpose or whose content is of a sexual nature constitutes sexual history evidence, which is found in subsection 276(4).

In the Barton case, the trial court had to determine whether the sexual activity that caused the death of the victim, Ms. Gladue, was consensual. In this case, evidence of prior sexual activity with the accused was admitted without the judge holding a hearing on whether it was appropriate to admit this evidence as would usually happen. In addition, numerous statements about the complainant's status as a person who provides commercial sexual services were admitted, as were statements about her ethnicity. I want to be clear that both the Wager and the Barton trial court decisions were overturned on appeal because errors of law were made. It provides a measure of comfort to know that such errors are corrected on appeal. However, that fact may not offer much comfort to the victims in such cases, or in the case of Ms. Gladue, her loved ones. When the law is misapplied, appeals follow and perhaps even a new trial will be ordered. This can significantly lengthen the criminal justice process.

What can we do about this problem? How can we help our criminal justice system function fairly when addressing one of the most complex human interactions? We can support Bill C-3, which would assist in ensuring that judges have the education they need to understand sexual assault law, those most impacted by sexual offending and the social contexts in which sexual offending occurs.

[Mario Simard, Bloc, Jonquière, QC]

Madam Speaker, I enjoyed my colleague's speech. Everyone here is in agreement. I do not think anyone is opposed to this bill. I would like to pick up on my colleague's remarks by talking about myths and stereotypes.

Some judges may have certain stereotypes. That is not too hard to imagine, given examples like the one my colleague shared about the Alberta judge who told the poor victim to squeeze her legs together. This bill may put an end to outdated cultural constructs and stereotypes. However, it seems to me that the Liberal government is introducing a new myth and new stereotypes by selecting judges from a list of Liberal Party donors. That could undermine public confidence in the justice system.

Does my colleague think we need a more rigorous process to preserve public confidence in judicial neutrality?

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, I thank my hon. colleague for the opportunity to speak about the stereotypes that still exist and persist in our society. When it comes to the courts, they should be completely neutral. They should be listening to the evidence and not be subject to those stereotypes that we have heard about, which have been in the courts for decades.

This legislation cannot come too soon. This will be an opportunity for our judges to truly understand and, as I just heard one of our eloquent members from Brampton say, to walk in someone else's shoes, to walk in her shoes. To understand and put those stereotypes aside is important for our courts, and it would make a more robust system for us here in Canada in addressing these horrific crimes of sexual assault.

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

Madam Speaker, I was sitting on the justice committee when we made the amendments to the bill. I would like to hear my colleague's thoughts on why it is important that the bill now includes specific reference to the terms “systemic racism” and “systemic discrimination” when talking about social context.

Also, could the member talk about how much more needs to be done than just this legislation and how he will pressure his Minister of Justice to do more. What more could the federal government be doing to ensure that we are addressing these profound issues in our justice system?

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, I want to thank the member for the work he has done over many years and for his advocacy when it comes to victims of sexual assault. He has been very vocal, very impactful, very passionate and has brought so much to the table.

When Bill C-3 has been studied and debated here in the House, we would see almost wraparound services for the victim, which is part of this bill and would have an impact by providing those extra social services and those opportunities that come with community-based supports. I know the member has spoken about that and how important it is to him. I fully support him on that, and we want to see Bill C-3 pass.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, I am pleased that the government has reintroduced this bill that we all agreed to in its original form in the last Parliament. Credit is due to the Liberals for doing so.

In the member's speech, he addressed the issue and talked about trust in the justice system. I would like the member to answer the question that was put to him by the Bloc member a moment ago, about the impact of seemingly having political influence bear on the judicial decision-making process at appointment.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Madam Speaker, we have to be very proud of the justice system that we have here in Canada. What we try to do in this chamber every day is continue to make it better. By desensitizing the courts, by being able to address where we have found, as we have just heard, systemic discrimination, where we know that there are stereotypes and myths that—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Resuming debate, I am going to go back to the hon. member for Sherwood Park—Fort Saskatchewan.