Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 64 - Evidence - June 3, 2019
OTTAWA, Monday, June 3, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), met this day at 6:15 p.m. to give clause-by-clause consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: It’s my privilege to welcome you this afternoon to start our consideration of Bill C-337.
We have our colleague the Honourable Senator Andreychuk. I don’t think I need to introduce Senator Andreychuk. Many of you know her personally, and I’ve worked closely with her. We appreciate very much, senator, that you are here with us tonight to start consideration of Bill C-337.
I would also like to introduce the Honourable Rona Ambrose, who, of course, as all of you know, was the sponsor and the initiator of Bill C-337.
We are privileged to have both our esteemed colleagues tonight. I don’t know if you will have a draw as to who will start, but we will invite the Honourable Rona Ambrose to introduce Bill C-337. The floor is yours, Ms. Ambrose.
[Translation]
Hon. Rona Ambrose, P.C., as an individual: Mr. Chair, thank you for inviting me to talk about Bill C-337, known as the JUST Act. I would also like to thank all the senators on this committee and the Senate as a whole for their open-mindedness in considering this important piece of legislation.
[English]
I especially want to thank Senator Raynell Andreychuk for sponsoring this bill through the Senate.
Mr. Chair, it only takes one negative high-profile case to create a loss of confidence in an institution. Sadly, there are many more than just one case when it comes to the negative perception people have about how sexual assault cases are handled by judges. We continue to see instances where judges have made mistakes in applying sexual assault law, whether it’s the use of rape myths, such as the comment by one judge to a rape victim who said, “Why didn’t you just keep your legs closed?”; or racial bias in the courtroom, such as Cindy Gladue, an Aboriginal victim of rape and murder being referred to as “Native girl” or “Native prostitute” instead of by her name during a trial; or a complete lack of understanding of what the law says when it comes to consent, such as when a judge said, “Clearly, a drunk can consent,” when referring to a woman who was pulled from the back seat of a car and raped by her taxi driver while passed out.
In the last month alone, the Supreme Court of Canada has overturned two sexual assault acquittals because judges made grave errors in the application of sexual assault law. In the Cindy Gladue case, the Supreme Court noted that “. . . the criminal justice system did not deliver on its promise to afford her” — of course, they meant Gladue — “the law’s full protection, and as a result, it let her down . . .” The Supreme Court of Canada released a clear message to all participants in the justice system that they need to do much more when it comes to addressing issues of stereotypes and racial bias in the courtroom affecting Aboriginal women.
In the W.L.S. case, again overturned by the Supreme Court, the judge again misunderstood the issue of consent and determined the victim consented even though she was forcibly confined, threatened at knifepoint if she attempted to leave, violently dragged in a chokehold, drugged unconscious and sexually assaulted multiple times — all of which was witnessed by someone the judge considered credible. Upon its review of this case, the Supreme Court noted:
This complainant was statutorily incapable of consenting and any other finding on this point was a clear error of law.
The Supreme Court not only found egregious errors were made by the judge, but they returned a guilty verdict on the sexual assaults and ordered an additional charge against the perpetrator.
In Alberta alone, four similar cases were overturned by higher courts in a two-year period for the same reasons: the misunderstanding of sexual assault law by judges and reliance on bias, stereotypes and rape myths in their rulings.
Now from a societal context, sexual violence is described as “a silent epidemic” by some. The statistics are staggering. One in three women and one in six men will experience sexual violence in their lifetime. For Indigenous women and girls, the numbers are much worse; they are five times more likely to suffer sexual violence than non-Aboriginal women.
If these numbers are not alarming enough, 95 per cent of women who are sexually assaulted remain silent. And, men and boys are even less likely to report their experiences. When asked why, according to Justice Canada research, two thirds of the victims will say that they have no faith in the courts. So I think, senators, we can do better. We must find ways to increase confidence in our courts and in our judiciary so more victims come forward to report.
Bill C-337 is a modest proposal, supported by organizations and individuals across Canada, to do exactly that: to ensure education and training to the leaders in our justice system who hold the most power, our judges.
This is not a unique idea. In the U.K., for instance, judges cannot preside over a sexual assault case until they receive what’s called their “rape ticket” to ensure they have received comprehensive training, training that they are required to update every three years.
Training our judges in sexual assault law is important because, as the Canadian Judicial Council notes, sexual assault cases are some of the most complex and difficult matters heard by the courts. They also say that the training judges get in social contexts is important because, as they say, “It’s about challenging attitudes that judges may be unaware that they hold.” I commend them for their commitment to this issue.
Mr. Chair, passing this bill is important for two reasons: It sends an important signal to Canadians that Parliament understands the importance of this issue and the importance of building confidence in our institutions; and it is also about federal leadership, as it sends an important signal to the provinces. Advocacy and debate around this bill has already resulted in one province, P.E.I., passing a similar bill. I can share with you that I am at different stages of conversation with four provincial attorneys general about this topic, and I know they are watching for your guidance here.
[Translation]
Honourable senators, your leadership on this issue will send a strong message to all those in the justice system about the importance of continuing to raise awareness and eliminate prejudice and stereotypes in courts. This will improve overall confidence. All Canadians — especially those affected by some of the most heinous crimes — must be able to trust their justice system. The JUST Act is only one step towards a more accountable and transparent justice system.
[English]
Senators, you have four clauses before you. They are not controversial or overwhelming; they represent small and realistic changes that can have an impact on those 95 per cent of sexual assault victims who today remain silent and who truly are fearful to come forward to a system that they believe does not have their best interests at heart. I think we can change that perception and that reality.
Thank you, Mr. Chair.
The Chair: Thank you, Ms. Ambrose. Senator Andreychuk, do you want to share comments with us as well?
Hon. A. Raynell Andreychuk, sponsor of the bill: Thank you. I’m mindful of the short time we have.
The Chair: You’re mindful of the bell, yes. We will come back after the vote. I asked the Honourable Ms. Ambrose to stay in the room. She knows the constraints of Parliament. We have a vote scheduled for 6:48. We’re close to the chamber. Do you prefer, Senator Andreychuk, to wait until after the vote>
Senator Andreychuk: It’s up to you. My comments will be much shorter.
The Chair: We’ll listen to you.
Senator Andreychuk: We covered the same ground and the same reasons. The Honourable Ms. Ambrose has touched upon why the bill is important, but I wanted to put forward some comments that are practical, both with respect to the amendments that I believe will be coming forward and why I think this bill is a good step. But I’m in your hands. You tell me whether I have five minutes now, or whether we should —
The Chair: Now, if you think you could do it in five minutes. We’re close to the chamber. All honourable senators will have time to reach the chamber for the vote, so go ahead, senator.
Senator Andreychuk: You might indulge me when I come back with a few more minutes?
The Chair: Of course. You don’t lose your right to speak after the vote.
Senator Andreychuk: I accepted to be the sponsor in the Senate, as I believe that the house unanimously put forward this piece of legislation. It was timely at that time. It had arisen out of a standing committee where sexual assault issues were being raised and discussed, and the bill was very much part of that process. Of course, it came here.
The question was not whether we needed a bill but in what form. What are the messages we are trying to give Canadians? First and foremost is that sexual assault issues continue to have disproportionate negative consequences to women and other assault victims, and it’s time that we changed the stereotypes, misperceptions and attitudes we have toward women in our society.
The Honourable Ms. Ambrose has pointed out that we need to pay special attention to Aboriginal victims of sexual assault, as they are disproportionately before the courts. I’m very pleased that today we have two members here from the Assembly of First Nations, who have moved a motion within the AFN supporting Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault).
This tells you we did not believe it was wise to go public and to put all the issues out. It was more important to quietly build coalitions so that we understand the role of the courts and the harms being caused. We also wanted to know that the balance that will come by using this bill will not interfere with the rights of the defendant. In many cases, I believe it will help the defence. Therefore, we have approached this bill in the way we have.
This is to highlight an incredible problem in our communities that needs addressing, and it needs addressing now. It seems that it doesn’t take more than four or five cases to build disrepute for a system. We in the Senate are very caught up with our own obligations but the obligation to the institution, and the judges are in that same position.
Education is the first and best way, but we wanted to know that we are not interfering with the independence of the judiciary, and if there was even some thought of that, that’s wrong. Parliament has a right to speak to the judiciary on behalf of the people, and it is timely that sexual assault cases be addressed more appropriately within the system, but who trains the judges should remain in the hands of the judges.
I believe there will be some amendments coming to our bill that we have all talked about; we’ve all been involved in one way or another. I thank my colleagues around the table: Senator Dalphond, Senator Pratte, Senator Joyal, Senator Batters and Senator Boisvenu. Some more than others, but virtually everyone around this table has been involved.
I particularly want to thank Senator Pate. She has taken many of these issues on in different fora, and I hope we can continue to support her. She unequivocally said, “Go ahead, do what you need to,” and I thank her for that.
The collegiality of addressing the concerns and understanding the independence of the court are there. The signal from Parliament is that we have a responsibility to speak for those who are being disadvantaged in the judicial system, and consequently, we are putting our emphasis there. We can also speak to the court, but we are not interfering with the court; we are supporting the court.
The Chair: Thank you. I will have to adjourn, honourable senators, and invite you to run to the chamber for the vote.
[Translation]
Ms. Ambrose, if you don’t mind staying in the room for the next few minutes, we’ll be back right away.
(The committee suspended.)
(The committee resumed.)
The Chair: We are resuming our study of Bill C-337.
I invite Senator Andreychuk to conclude her presentation. I apologize for interrupting you, but we had to suspend the meeting to vote in the Chamber.
[English]
Senator Andreychuk: There are two thoughts that I wanted to leave with you. Having been a family court judge for many years, I can honestly say that every judge I came in touch with, or at least the majority, wanted educational training. We knew that societies were changing, and the issues we are touching are so personal, very much involved and different from society to society. We’re moving and changing in Canada, and most judges want to understand the society they serve. This is why I’ve been so in touch with this bill. It is not that I think judges are saying they don’t need to be trained. I think most are saying it, and many who find themselves in difficulty say afterwards that they wished they had the training.I think that needs to be underscored. It is a lever for judges, and I think most are very accepting of it.
Thank you.
[Translation]
The Chair: Senator, thank you for your clarification and thank you for your presentation.
Senator Boisvenu: I would also like to thank Ms. Ambrose and Senator Andreychuk for doing such a great job today, after two years of trying to convince people and parliamentarians of the need to complete the work they have begun. I would like to express my appreciation to you and my colleagues on both sides, including Senator Dupuis, with whom we discussed this bill in the steering committee. I would like to thank you for the great sensitivity you have shown towards victims of sexual assault. Our role is essential, and this bill will be a message to victims of crime that the justice system must trust victims, in order to prevent 50 per cent of them from abandoning their complaints during the judicial process, which is completely unacceptable. I think it is a message of confidence in the justice system, but it is also a message of great sensitivity to victims. I would like to thank senators on both sides of the Chamber.
My question is for Ms. Ambrose. In your opinion, how will this bill make the experience of sexual assault victims less traumatic in the judicial process and how will it increase the number of cases reported, which is very low? We know that only one in 10 women report an assault. How will this bill change the reality of victims in the justice system?
Ms. Ambrose: Thank you, senator.
[English]
Thank you for all of your advocacy with victims. I know it well, and it’s very much appreciated by Canadians across the country.
The intention of this bill has always been to help build confidence in our judiciary. I mentioned in my opening remarks that it only takes one negative high-profile case to really taint an institution, but I also mentioned that there is much more than just one case.
I thank the Supreme Court of Canada, frankly, for how direct they were last week in the Cindy Gladue case and previous to that in the W.L.S. case when they talked about some of the judicial errors around the application of sexual assault law in these horrific sexual assault cases.
We live in an era of not just social media but of information, where things travel quickly. When we look at the statistics, it occurs to all of us there are many victims in the Canadian public. When they think about coming forward, it is a very difficult thing to do to begin with, to make the decision to bring a complaint forward of sexual assault. There is shame around it, concern about image and many different reasons why a complainant may not bring their story forward. But if a complainant does decide to do that, which is one in ten, and they manage to get through that very difficult situation, their case goes to trial and they experience things at trial that we’ve talked about, whether it’s sexism, stereotypes, rape mythology, things that are not allowed to be discussed in the courtroom, and not only is it discussed but it’s allowed to permeate a courtroom. Beyond that, a judge then rules in a way that clearly shows an error in the application of the basic law. That is devastating for a complainant. Any error in law should also be devastating, frankly, for a defendant. We have to expect more.
I would say there are many ways in which we can work with victims to encourage them to come forward, but what we hope is that those who are the most powerful in our justice system, who are the ones that give the final verdict, if you want to call it that, after years of a victim going through the system — we need to and should expect that when a complainant comes forward, that the judge presiding over the case has social context training, up-to-date training on rape mythology, and, of course, a full understanding of the law. I think that’s important to continue to instill. We should always — particularly parliamentarians, senators and MPs alike — be thinking about building confidence in our institutions, and our judiciary is one of our most important institutions. That has always been the intention of the bill.
Senator Andreychuk: The justice system is larger than the judiciary. If the judiciary, which is the final step if you get that far, is embraced and taking this very seriously and teaching, it’s a signal throughout the entire system. We know there is now more training for the police. We know that this is happening. It is really reinforcing a judicial system from the start when the victim is found or comes forward to the end when it comes to court. I think it will be a great signal from the top.
[Translation]
Senator Dupuis: Ms. Ambrose, thank you for being here with us. I will need your help to understand the bill. My thanks go to you as well, Senator Andreychuk.
For 40 years, the Canadian Human Rights Act has prohibited discrimination against women. In addition, the Canadian Charter of Rights and Freedoms has been around since 1982. In 1987, the Supreme Court determined that discrimination is not only against a particular person, but that there is also systemic discrimination inherent in legislation, policies, actions and words.
One thing struck me about the bill, and I would like you to help me understand it. Just recently, we heard from witnesses who told us how the criminal justice system not only does not protect women, but that in the case of sexual violence trials, there is a sort of triple vulnerability for the victim. This vulnerability is simultaneously linked to the accused, to the Crown prosecutor who is trying to obtain a sanction against the affront to social order, but who is not necessarily there to preserve the rights of the victim, and to the judge, on whom the outcome of the trial depends. You have made this very clear.
My question is this: should we not go beyond simply providing training? Are we not facing resistance from a number of people in the judiciary who have not understood or have decided to act in a way that the Canadian legislation has no longer been accepting for at least 40 years?
For example, I see that the first paragraph of your preamble refers to “survivors of sexual violence in Canada.” Are we not at the stage of actually designating them as female survivors? It is not neutral. For the most part, the victims of sexual violence are women.
I am also surprised that, in the third paragraph of your preamble, reference is made to the values and principles of Canadians, reflected in democratic institutions, but that compliance with the Canadian Charter of Rights and Freedoms is not specifically mentioned. I was sort of surprised.
Finally, with respect to the fifth paragraph stating that problematic interpretations of the law may arise in these sorts of trials, my question is as follows: Why did you not feel the need to say that these are not only problematic interpretations of the law, but that they also give rise to discriminatory comments that violate women’s right to equality and that they are in fact abuses of power by judges, who are required to uphold and enforce the law?
So I would like you to help me understand what you are trying to achieve with this bill.
[English]
Ms. Ambrose: I should have checked with you before. That is a very astute interpretation of some of the major challenges that are impacting the justice system when it comes to gender violence, and I appreciate everything that you’re saying.
I think where I started with this bill was consulting with — actually, one of the first people was Kim Campbell, because my first thought about a private member’s bill was to have a bill that amended the Criminal Code in some way, and I thought we should do something around sexual assault. We had a very interesting conversation. She said to me, “Rona, the law is a very good law, and it’s one of the best in the world. That is not the problem. The problem is how it’s being applied. It’s very complex.” She explained there are nuances at times but there’s a lot of complexity, and they are some of the most complicated cases that judges have to preside over.
So that’s really what we need to target. We need to target the best possible education and an acceptance. There’s a great quote by Richard Wagner, the Chief Justice, talking about how important judicial education is. He says it’s one of the pillars of a strong justice system. A commitment to lifelong learning is essential. Judges need to keep on top of developments relevant to their work, hone their judicial skills, such as courtroom management, and understand the social context of their decision making in keeping with the values enshrined in Canada’s Constitution.
I do believe that’s really what the intention of the bill was. We tried to scope it in a way to not go further than that and to really focus in on training. We weren’t trying to change the law, but we were trying to say we need everyone who is presiding over these cases, at least in the federal sense, because that was the jurisdiction we’re dealing with, to understand the law and be completely competent in the law. But I do take your point.
Senator Batters: Welcome back to the Senate Legal Committee, Ms. Ambrose. I am very happy to see this important bill in front of us tonight, and thank you very much to the two of you for working so hard on it over the last couple of years. As a practising lawyer for many years, I certainly saw the need for this type of judicial training first-hand in courtrooms.
Ms. Ambrose, I’m wondering if you can tell us how you first became interested in this issue. I know you participated in a Court Watch Program as a university student, so I’m wondering if you could tell us about that experience and what advances, if any, you have seen in how sexual assault trials are handled.
Ms. Ambrose: I worked at a rape crisis centre when I was in university, and I also participated in a Court Watch Program as a volunteer. It was a program where a number of us volunteers sat in the courtroom for these particular kinds of cases and took notes about how victims or complainants were addressed, the language used, how they were treated and then, of course, sentencing, rulings and commentary by judges. What came out of that was a report that recommended that there be mandatory training for judges. This was specifically in British Columbia.
I don’t want to give away my age, but that was a couple of decades ago and it’s still not happening. There is training happening. I would suggest it’s definitely not mandatory in all jurisdictions, so it’s optional and not necessarily comprehensive. I’ll leave it at that.
I think there is more to do, and when we see things like two cases overturned by the Supreme Court, with very strong language coming out of the Supreme Court around these issues, it’s incumbent on us to think about how to strengthen our institutions.
That was a very interesting program to be part of, and it really had an impact on me. In fact, I remember sitting through one trial where a judge actually asked a little girl why she flirted with a man. This man was in his 50s, and he used that language “flirted.” I’ll leave it at that. That was many years ago. There were no consequences for that particular judge because there really was no forum to address it. We were just students, we were taking notes, and it ended up in a report that went to a government and ended up on a shelf.
I do know there has been lots of good work done by people like the National Judicial Institute and the Canadian Judicial Council to address the need for training in this area, but I think we can do more.
Senator McIntyre: Thank you both for sponsoring this bill, Ms. Ambrose in the House of Commons and Senator Andreychuk in the Senate.
Ms. Ambrose, could you describe your consultations with stakeholders, victims’ groups, the legal community, the judiciary and so on during the preparation of this bill?
Ms. Ambrose: Well, there was a lot of consultation. We worked with organizations in the Indigenous community across the board, and you’ve already heard Senator Raynell Andreychuk talk about the support from the AFN. We also have support from the Native Women’s Association of Canada. That came very early on. People like the Canadian Centre for Child Protection, the Canadian Women’s Foundation — many women’s organizations and victims’ organizations — the Catholic Women’s League. There is an organization representing over 200 women’s organizations in Quebec that supports the bill, and I think you have a submission from their president. The Federal Ombudsman for Victims of Crime.
I obviously wrote letters to the Canadian Judicial Council and to others, the National Judicial Institute. I made them aware of the bill and sent letters, but there has to be a sense of independence. I can’t tell you that we had conversations about the bill in that respect, but I did get mail back from them and that was terrific.
So lots of stakeholders, law enforcement, lawyers and judges who, of course, also don’t speak publicly on this issue but have spoken to me privately.
Senator McIntyre: I have another short question. This goes to either one of you. Given the recent judicial treatment of sexual assault cases, would you say that such cases add to the factors that deter victims from reporting sexual assault?
Senator Andreychuk: Absolutely.
Ms. Ambrose: Absolutely.
Senator Andreychuk: I think you can say that most victims feel that they are assaulted twice, once in the situation and then in the process of the system. It is not where you want to go again, if that’s what you think you might be facing.
That’s what I say. We can have many good cases, with good judges and good police work. Those aren’t reported. It is the one that hits the headlines, but then it makes everyone think twice, whether you want to go through that. You might just be in that courtroom with someone with a throwaway remark or perhaps with an attitude.
We know that the Canadian Judicial Council does deal with a lot of these privately, but I think what this bill is doing is bringing it to the front and saying, “We care as parliamentarians, we care about the institution, and we care about the entire system and those who have to go through it.”
Ms. Ambrose: I would just follow up with one quick comment, if I may, from Arlane Goudreau, who is the head of an organization representing 200 different organizations in Quebec. She wrote in her submission to you that last May, several survivors of sexual assault spoke at a conference organized by them. Their testimonies were striking. Their experience in the justice system had not only been fraught with difficulties but had helped revictimize them. Several participants at the meeting said that if they had to do it again, they would not report the crime they had suffered. This was an overwhelming observation.
Senator Dalphond: Thank you for being here tonight, Ms. Ambrose and Senator Andreychuk. I want to salute Ms. Ambrose for your dedication and initiative for this project to improve the public’s confidence in the judicial system.
The Barton case released 10 days ago has shown the need for education of superior court judges presiding over jury trials related to sexual assault, but it remains that most of the sexual assault cases and older gender-related offences are heard by provincial court judges. I was pleased to hear in your introductory remarks that you had four attorneys general watching what we’re doing today. For the remaining provinces — not six but five, because Prince Edward Island already has a bill in place, and the territories, what’s the next step in order to make sure that this good news is spread around and that provincial judges are also invited to train and get a better understanding of these evolving and complex issues and concepts?
Senator Andreychuk: Perhaps I will answer that because, having been a provincial court judge, it’s important. We really touch the people more often. I have undertaken to many of the senators that I talked to that should this bill pass, I will immediately contact all the attorneys general to discuss the need. I have done some of that already and there is a very positive response. They need to know what we are going to produce and they will have their discussions, and I perhaps will have a lot of time to be able to pursue that. I must say provinces and territories, because some of the difficulties are distances, and differences, and rural areas, and so that’s what I’m very concerned about. I’ve already taken that on as a mandate for myself.
Senator Dalphond: I am glad to hear we have a powerful team working on that issue.
Ms. Ambrose: If the Senate deems this bill appropriate to proceed with, that is in itself showing federal leadership, which was also what this bill was about. The intention was to show federal leadership on the issue and send a signal to the provinces.
Senator Pratte: Ms. Ambrose, as you know, we’ve all been working on the bill for a couple of months now, and although everyone agrees with the goal and the principles, which are extremely important, and believes that this bill should be adopted, some of us saw some practical obstacles and in some instances possible infringements on judicial independence, so many of us have been working on possible amendments. I would like to hear what you have to say about one possible amendment that we have been working on.
One practical issue was that the bill as it stands now requires that everyone who applies for a federal judgeship has to have taken a course before they apply, which poses a lot of practical problems, one of them being that one out of ten are appointed in the end but, of course, you require that all ten or more than ten follow the course. So a possible amendment that would preserve your intention but resolve that practical issue is that applicants would be required to commit to follow continuing education, which is even better than having just a course because it would be continuing education in sexual assault law. If they are appointed, they have to follow these courses and continuing education in sexual assault law rather than requiring every candidate to have followed these courses. What do you think about this possible idea of amendment?
Ms. Ambrose: Well, I will just say quickly the reason we targeted the scope of the bill at lawyers is we were trying to do our very best to avoid infringing on judicial independence, but your amendment and the amendment discussed by senators is a very good solution. I know that legal scholars that are experts in sexual assault law have looked at it and, in particular, they say that this specific amendment actually is stronger than the bill in its original form. I think that’s terrific, and I applaud the senators and this committee for really trying to think creatively about how to get past the challenges we had with the bill and finding a way forward so we can ensure that the intention of the bill succeeds. I’m supportive of that particular proposed amendment.
Senator Pratte: Thank you.
Senator Pate: Thank you to both of you for all your work on this.
I don’t know what a critic normally does. It’s the first time I’ve been a critic on a bill. You made it very easy because you did all the work, so thank you very much for that and for agreeing to amendments being proposed.
We have a submission that was made by Professor Elizabeth Sheehy regarding the need to also look at some of the discriminatory beliefs about men’s violence against Indigenous women in particular. You mentioned that the Native Women’s Association and some of the other Indigenous groups have come on side. I’m struck particularly today since it is the day the report of the inquiry on missing and murdered Indigenous women was released, and there are a number of recommendations that certainly would benefit from being amplified by the legal education you are talking about. One of the recommendations that Professor Sheehy made was to look at having some additional emphasis on cultural and some information about Indigenous women. Are you comfortable with what’s in the bill? Would you be interested in seeing more information provided for judges in that area? Have you had any thoughts? You may not have had a chance to look. I’ve only had a cursory look at the report, but it strikes me there is an abundance of material in here that would be useful for judges to know.
Ms. Ambrose: The scope of the bill, when it talks about the scope of education or tries to define what training would look like, is very good. What happened today with the Missing and Murdered Indigenous Women and Girls report and what happened last week with the Gladue case I think is a pretty strong sufficient message to the judiciary and to the justice system that there is more to do to make sure that all participants in the justice system are not allowing stereotypes about Aboriginal Indigenous women to permeate our courtrooms. That was pretty clear. So I feel like that will be something that will be addressed through training. The way the training is, the scope of the training is itemized, and it talks about working with many different groups, so I would hope and I’m quite confident that that would be one of the priorities, because it’s a big part of our justice system. So I feel comfortable with the way it’s worded now.
Senator Andreychuk: We bearing in mind the balance of not intruding into institutional responsibilities but rather signalling. There is the phrase “social context education.” We can with this bill also monitor what will be happening to determine whether it’s sufficient or not. The courts will know that this is something that the communities, the victims and Parliament are looking at to see if it’s sufficient, including I think some of the comments that Senator Dupuis said.
Ms. Ambrose: That’s a good point because there is the other provision of the bill, the reporting, which provides transparency about the content of the education and training.
Senator Lankin: Thank you to both of you for your persistence, and certainly Ms. Ambrose, thank you to all the people who worked with you. You indicated to me a lot of people were involved with this. It’s an important initiative. As you know, I have supported the bill from the beginning.
I have a couple of questions. Let me start and pick up with where you just ended off, Senator Andreychuk, and also Ms. Ambrose, and that is about the monitoring. We know that what gets measured is important because we send a signal by that in and of itself, and it is important for us to be able to understand the indicators along the way and the results at the end, what the impact has been. I wondered if you could explain to us how the bill’s monitoring mechanisms will work and whether or not that’s enough for us to ensure there is a positive impact of the training itself, the quality of the training and how the training is received and then, hopefully, applied in interpretation of cases in the courts. Could you elaborate a little bit for me so that I understand?
Ms. Ambrose: I think the reporting is a really important provision because it’s another layer, a bit of pressure, if you want to call it that, or accountability around encouraging judges to take the training. The report would not only name the number of judges that have taken the training but, most importantly, in terms of the question that Senator Pate asked, the content of the training. I think it’s important for people like you in the Senate or Parliament to be able to see that, as Senator Andreychuk said, as those issues that are always changing, the current training is up to date and is reflected in the report that comes to Parliament.
I think it also helps when we think about written decisions. I know that was in the bill, but it was taken out in the House of Commons. I think that’s sort of what you’re getting at, in terms of a level of transparency and accountability. But that was found by a number of stakeholders to be too costly to the justice system and would create delays. The reporting is something I’m very glad is still in the bill and will help with a new level of transparency.
Senator Lankin: Thank you.
Senator Andreychuk: The optimism comes that there is a response from the courts now, right at the top level, that this is an issue for them and that they do want to reach out to the society. They’re moving around and they’re talking about the issues in our society. I don’t see this bill as the answer; I see it as the start. Hopefully the court will be more transparent in talking to the public about its education, and then we will have an opportunity to respond. Senator Joyal will remind you that it seems the Supreme Court often reads what we say in these committees and in our debates. All of what we say here is a sign of what we think is an expectation in how they approach this.
The Chair: We do have other witnesses waiting.
Senator Lankin: I will continue without any preamble because I think there’s optimism in terms of what the Supreme Court has done.
I wanted to ask about an approach you obviously rejected and why that was rejected. The U.K. legislation, as I understand it, sets out a provision that a judge is required to take this training before they would be assigned to cases that involved sexual assault. I find the unofficial name given to that incredibly offensive, but that being the case, it shows there’s more work to be done there too. Did you look at that and reject it, and could you tell me the reasons why you rejected that approach? Because I have some concerns about how often the wall of judicial independence, as much as I support that, does seem to be a wall in terms of getting at what we need to get at for equality in the justice system for women.
Ms. Ambrose: We wanted to be very mindful of not encroaching on the administration of justice, because that’s not something Parliament should do. We were trying to find a way to address an issue and be supportive of education and training for the judiciary on this particular subject and finding ways to increase that accountability and pressure. With the amendments that are being proposed, frankly, we found an even better way to do that. But as I said, it’s a modest proposal, and I think there are people who might have liked to see it be more aggressive. But we had to be extremely mindful because we didn’t want this to be challenged and to lose this bill later in the courts.
As Senator Andreychuk said, if this bill passes, there is a level of transparency and accountability in terms of the kind of training, and we can watch that and see that. But it is also up to the judiciary to take a signal from Parliament — and obviously we’ve seen what happened in the last couple of weeks from the Supreme Court, which I’m sure they are — and take the next step.
Senator Lankin: Thank you very much.
Senator Dyck: In your opening remarks, I was glad to hear you talk about Indigenous women and that you have the support of the Assembly of First Nations and the Native Women’s Association of Canada. Of course, as you know, today the inquiry released their report. I can’t help but wonder if there’s some way — perhaps in Senator Pratte’s amendments — that we could put in something about not just myths and stereotypes that have created the problem for women, and a worse problem for Indigenous women, but that it’s due to a colonial belief system that’s the foundation of our law. If there were some way that we could acknowledge that, would you be open to that sort of attempt? I think it’s important to name the problem, because this is all neutral language. We don’t talk about women or Indigenous women; we just talk about sexual assault.
Ms. Ambrose: I really appreciate your comments, and I want to commend you for the work you’ve done, because I’ve watched you, and you do terrific advocacy on behalf of Aboriginal and Indigenous women across the country. Today was a really important day for those who worry about the fact that Aboriginal women are five times more likely to suffer sexual violence. This bill is important for that context as well.
I would say that I think the reason the language is neutral — and I know there are a lot of people who would like more aggressive language — is because, at the end of the day, we want to make sure this is about all victims, and it’s about training in the law. When we talk about stereotypes and bias, my hope is that encompasses all those things. I think we’re safe in the fact that the Supreme Court was very clear in the Gladue case in terms of giving direction to the courts on the need to address stereotypes around Aboriginal women in the courtroom. So I feel pretty good that’s —
Senator Dyck: That language was very clear, and certainly does lend a lot of support to your bill.
Ms. Ambrose: Thank you, Senator Dyck.
The Chair: I think we will hear from the National Judicial Institute tonight. Perhaps we could suggest that the first thing they should put on their agenda of training is the study of the last decision of the Supreme Court. That would probably be the best way to understand where the highest court of the land sits in relation to the interpretation of the law and how to apply it. I think we are on the right path to progress in the system.
I have the privilege of thanking Ms. Ambrose and our colleague Senator Andreychuk. Thank you so much, Ms. Ambrose and Senator Andreychuk. We will ask you to leave the table at this stage so that our next witness, the Honourable C. Adèle Kent, Chief Judicial Officer for the National Judicial Institute, can come to the table and we can move on.
Ms. Ambrose: Thank you, chair and honourable senators.
The Chair: Our pleasure.
[Translation]
Thank you very much for your contribution to our debates this evening.
[English]
It’s my pleasure, honourable senators, to introduce the Honourable C. Adèle Kent, who is the Chief Judicial Officer from the National Judicial Institute. We will ask you to make a presentation, Ms. Kent.
[Translation]
Then, my colleagues around the table will be pleased to discuss Bill C-337 with you.
Hon. C. Adèle Kent, Chief Judicial Officer, National Judicial Institute: Thank you for the opportunity to provide you with information about judicial professional development.
[English]
Before I go to my formal remarks, I want to follow up on what you said to Ms. Ambrose about the recent Supreme Court decision in Barton. One thing I tell judges every time I have the opportunity to talk to them about these issues is that some of the best education they can get is the last 15 minutes of the submissions to the Supreme Court in Barton where we heard from some of the intervenors. I will make reference to one set of those intervenors in a moment.
First, a little bit of information about the National Judicial Institute: We’re an independent, not-for-profit organization. We give about 95 per cent of the education to judges in Canada, principally to federally appointed judges. We do this sometimes alone, sometimes in partnership with the courts, and sometimes in partnership with other education institutes.
I wanted to spend my five minutes with you talking about a course that we have begun to deliver that aligns with the objectives of this bill. It’s a course called “Judging in Your First Five Years: Criminal.” If you go on the CJC website and look at their education policies that were passed last April, this course is expected to be taken by a judge in his or her second to fifth year.
The overall objective of the course is to teach judges how to effectively, fairly and efficiently judge criminal cases. Because sexual assault cases raise so many difficult issues, we use two sexual assault hypotheticals for teaching. The course is six days long. The judges take a case from start — the pretrial motions — to finish — the sentencing.
In addition to important legal concepts, judges address the social context of complainants, both generally and specifically. Included in the training are sessions on myths and stereotypes, controlling direct and cross-examination, assessing credibility, assessing expert evidence and considering Charter issues. The judges are asked to rule on applications under section 276 and section 278 of the Criminal Code. The judges watch videotaped evidence of a complainant and an accused. They are asked to address issues arising from the evidence, including controlling inappropriate questioning of the complainant. A different video is used as the basis for judges to write reasons on credibility.
To ensure that judges understand the needs of vulnerable witnesses, this year in the course we had Jonathan Rudin and Jessica Wolfe speak about the historical trauma of Indigenous women and their reality in sexual assault cases. We hope, next year, with some adjustment to the timing of the program, to add to those sessions with portions on vulnerable witnesses such as children and witnesses with disabilities.
The real value in this education is the ability of judges to practise in small groups led by senior judges or criminal academics. The faculty who designed and delivered the course consisted of those same senior judges and legal academics, in addition to the representation from the Indigenous community set out above.
This year, we did the first program in January. It was national, attended by federally appointed judges from across the country. We also put on the same program in Ontario at the beginning of May because there were so many new judges in Ontario that pulling them away from their assignments in January was difficult. We’ve run it twice, and we expect to run it annually.
In addition to that training, we have developed the first two tranches of our sexual assault trial videos that are available to judges. We continue to build this suite of videos. It’s intended for newly appointed judges so that they can watch it from start to finish. There are about eight now. That suite will build. We will also have an opportunity for judges who are in the middle of a case who may be facing a particular issue that’s addressed in one of our videos.
I was also asked by the CJC to remind you, if you knew, and tell you, if you didn’t know yet, that the CJC publishes on its website a summary of all the courses offered to federally appointed judges. As I said at the beginning of my remarks, the bulk of those courses are designed and delivered by the NJI.
Thank you.
The Chair: Thank you very much, Honourable Justice Kent.
[Translation]
Senator Dupuis: Thank you, Ms. Kent. You mentioned the training provided by the institute, which is mainly for federally appointed judges. I understand that the new program is taught between the second and fifth years, and therefore benefits more recently appointed judges. What happens to judges appointed before that period?
You are well aware of the training available to them on human rights and discrimination against women. Why is it that, despite the training, some judges still resist complying with the law and continue to express their bias? Yet the Supreme Court makes it clear: Bias is part of systemic discrimination and, as a principle, it is not accepted in Canada. Why has this phenomenon not been successfully eradicated in Canadian courts?
[English]
Ms. Kent: I don’t think I can explain it. As the senator said before me, the vast majority of judges in Canada are very interested and very dedicated to taking continuing judicial education. For them, the education that they take as new judges continues. It is lifelong learning up until they retire. Under the new CJC policies, judges are expected to take 10 days of judicial education every year.
In terms of training, part of your question was what happens after a judge takes the course I just described. Excellent question. In the past five years, at various court programs that the NJI has designed for mostly federal trial courts, issues of sexual assault trials have come up many, many times. In my court in Alberta, for example, every couple of years there’s an introductory course on sexual assault trials. In our national criminal law program, the subject may well be sexual assault trials every couple of years.
There’s another important thing that I wanted to tell you about that is important for judges. Last week, I was at my court’s annual education. It was held jointly with the Alberta Court of Appeal. It was a day spent addressing issues under the Truth and Reconciliation Commission. If you asked me, “Justice Kent, was that a day of education on sexual assault trials,” I would have said no because that wasn’t the objective. However, we spent that day with our colleagues from the Indigenous community, happily led by Senator LaBoucane-Benson who spoke to us about the residential school history in Alberta. We heard from an elder; we heard her story. There were issues with an unfortunate history involving sexual assault. We heard about what was going on with the MMIWG and acknowledging the issues there. We heard about the increased rate of sexual assault occasioned on Indigenous women. Was that designed as training in sexual assault? No, but we had over 100 judges in the room hearing about those kinds of things, so I would suggest the education goes on throughout the lifetime of a judicial officer.
[Translation]
Senator Dupuis: You are doing a great job of reporting on everything that is going well in the system. The majority of judges ask for training, we do not question that.
My question was more about the current problems in the system. The addition of training can be useful for those who want to take the training, no doubt. I am talking about those who are the source of major problems in terms of discrimination against women in the system.
[English]
Ms. Kent: I think the heart of your question is whether such training should be mandatory. I cannot answer that question. That is a question for the chief justices. They are the ones who decide what education is approved for each of the judges. The National Judicial Institute designs and delivers the courses, but it’s not my job to decide who should or shouldn’t be attending any particular course.
[Translation]
Senator Boisvenu: My question is about the Barton decision, in which the justice system failed the victim.
From your perspective as a judge, which is very interesting for us, do you think this bill will send a very clear message to victims of sexual assault that the justice system is there, first and foremost, for them, the victims, listening to them, hearing them and believing them as long as the complaints are founded? In your opinion, does this judgment and this bill represent a new era for victims of sexual assault in our superior courts?
[English]
Ms. Kent: I think, as a judge, it would be inappropriate for me to comment on pending legislation. What I will say, in not answering your question directly, I admit, but acknowledging, I think, the intent of your question, is that I hope the kind of transparency the NJI sees as necessary to reassure the public that judges are receiving the professional training they need does reassure the public that the judges are properly trained.
[Translation]
Senator Boisvenu: Thank you very much, and thank you for being here this evening.
[English]
Senator McIntyre: Thank you, Judge Kent, for being here this evening to answer our questions.
There’s no question that, in addition to the courts, bodies that are important to the administration of justice include the National Judicial Institute, the Canadian Judicial Council and the Office of the Commissioner for Federal Judicial Affairs. All of those bodies play an important role in the administration of justice.
The goal of the National Judicial Institute is to improve the justice system, not only in Canada but also internationally, through leadership in the education of judges, so my question is this: In what way is the National Judicial Institute improving the justice system internationally?
Ms. Kent: We work with partner institutes in a variety of countries. Right now, through funding with Global Affairs Canada, we’re working in Ukraine with a number of partners. I can tell the senators that, just a week ago, I came back from working on a project with our partners in Ukraine. They passed new domestic violence legislation at the beginning of January of this year. This is another troubling area of the law, as I’m sure you’re aware. We in Canada have developed some structures in our court systems to attempt to address issues of domestic violence, not only legally but socially, because they’re so complex. We have been working with our partners in Ukraine with respect to them bringing in this new legislation and how the structure of the court may work to its optimum in terms of this legislation.
Senator McIntyre: Thank you, Judge Kent.
Senator Busson: Thank you very much, Madam Justice, for being here. I was interested when you were talking about the fact that the institute does 95 per cent of the training for judges. You also mentioned that you either take direction or work in concert with the CJC. I have a two-part question: Are there other courses that are mandatory with a time limit?
Ms. Kent: What’s mandatory is set by the CJC, not by the NJI. The only courses that are mandatory are the two weeks of new judges’ training, which judges take in their first year of being on the bench, and Judging in Your First Five Years, which is the course I referred to. That’s it.
In addition, it is expected that every judge take 10 days of education, but once you get out of those three weeks that I just mentioned, the determination of which of our courses you take is up to you, usually in consultation with your Chief Justice and the needs of your court.
Senator Busson: Does the CJC have any sway with certain judges, if judges are showing a need to have more focused training? Do they have any sway in suggesting which courses they might take as they move forward?
Ms. Kent: I cannot answer that question because I don’t know how those kinds of informal systems would work within the CJC. I can only give you my experience as a judge. I’ve been lucky. I’ve had wonderful Chief Justices that have worked with me. Fortunately, I’ve never been asked by one of them to take a particular course, but I know Chief Justices will often work with their judges to recommend courses because of their background or perhaps some difficult cases they will be facing in the future, where perhaps some particular education would be worthwhile. I think Chief Justices play that role.
Senator Busson: Thank you very much.
Senator Dyck: Welcome, Madam Justice.
Under the bill, a candidate will have had to complete social context education. Would you consider that social context education to cover the types of things that you were describing and that Senator LaBoucane-Benson and others were talking about just a few days ago in Banff, I think, about the issues with regard to missing and murdered Indigenous women and residential schools?
Ms. Kent: Absolutely. Also, we had a lecture on intergenerational trauma and the effect of that. Social context is much broader than that, but those certainly are issues that are important to cover in a social context.
Senator Dyck: How do you decide which social context issues need to be brought up and put into courses?
Ms. Kent: Some of it comes from the judges, but some of it comes from the community. Some of it comes from reports, like the report that came out today, which I have not had the benefit of reading yet. Some of it comes from consultation with groups that work with particular types of groups. In your legislation, you talk about groups that work with victims of sexual violence, and those kinds of community members are consulted in determining not only what kinds of issues are bubbling up or coming up that should be addressed, but how to address them.
Senator Batters: I appreciate your being here. Is it proper to address you as Madam Justice?
Ms. Kent: Or Justice.
Senator Batters: Thank you. I appreciate that, Justice Kent.
I have a couple of quick questions. Thank you for providing information about these components of judicial education that they do receive. Just so I understand clearly, for new judges, during that two-week mandatory training, how much of that particular training would you say is focused on sexual assault trials?
Ms. Kent: There are two things that I think specifically deal with it. There are two-and-a-half or two-and-three-quarter days that deal with the criminal law component. We work a lot with hypotheticals. What do you do in this kind of situation? A lot of those hypotheticals deal with a sexual assault kind of case. That’s out of the, as I say, two-and-a-half to three days. Then, for all judges, there is an extended afternoon of social context training. One of the elements of the social context training is delivered by former Justice Lynn Smith, who talks about the evolution of the amendments to the Criminal Code, because as you know, so much of the myths and stereotypes that were permitted have been legislated out by means of the Criminal Code. She starts with that to help judges understand the obligations that they have to take social context training and use, as I say, sexual assault legislation and court decisions to do that training.
Senator Batters: In that what you were referring to earlier as the second-to-fifth-year training component, how long would that particular segment that’s relevant to this be?
Ms. Kent: It was a six-day course. Sunday afternoon to Friday afternoon.
Senator Batters: When deciding which particular components in that portion of it, either that or later, are mandatory, that would be determined by the chief justices of each province; is that correct?
Ms. Kent: That’s correct.
Senator Lankin: Justice Kent, thank you for being here. You have provided some insight to the world of training that not all of us are familiar with, so I appreciate that.
Given you have told us that for federally appointed judges there is mandatory training in your first year and then in years two to five there is other training — both of those contain elements of sexual assault trial law and social context training — what will this bill bring that isn’t already being done? I appreciate you said that the course that was just offered is new so I won’t count the track record of the judges who we’ve heard speak the way they have in courts against that training, and I recognize a number of them are provincial. What will you do differently? What’s in here in terms of the content of the training or in terms of the urging or in terms of the sense of importance that this will bring about?
Ms. Kent: That again is a question I am slightly uncomfortable talking about because I recognize my role as a judge and your role as a legislator.
What I hope that the continued conversation that was started by Ms. Ambrose and continues on today brings to me in my job, to the institute, the judges and all of those around us, because there are more players in the system that I think we have to think about, is an awareness this is important, and hopefully a confidence that everyone who enters our courtroom — and I’m not just talking about a victim but witnesses, because sometimes trauma can be occasioned on a witness who is very nervous about being in a very unfamiliar and foreign place, and accused — has confidence that the judicial system is doing the best that it can to resolve the issues that have to be resolved.
The Chair: Justice Kent, thank you so much on behalf of all my colleagues around the table for having made yourself available tonight. You will understand that honourable senators are concerned to know what will happen once the will of Parliament will have been enacted in the formal legislation, and you have done your delivery of explaining the mandate of the institute in a way that, to a point, makes it real. It is very rare, as a matter of fact, as parliamentarians, that we have the opportunity to hear from justices themselves. We appreciate very much that you did it very professionally and very enlightening for our consideration of this bill.
Ms. Kent: Thank you very much.
The Chair: Thank you, Madam Justice Kent.
It is now my pleasure to introduce Professor Elaine Craig from the Schulich School of Law, Dalhousie University. Ms. Craig, can you hear me? I’m Senator Joyal, the chair of the committee.
Elaine Craig, Associate Professor, Schulich School of Law, Dalhousie University, as an individual: Yes, I can hear you.
The Chair: Thank you very much for making yourself available. I know it’s late where you are, but we sit exceptionally on Monday evening. I invite you to make your opening remarks and, after that, my colleagues will have an opportunity to exchange with you.
Ms. Craig: Thank you for permitting me to speak with you. I will be very brief as I understand there isn’t much time to discuss this and you may have some questions.
I do want to start by saying, though, I have studied sexual assault trial transcripts that would horrify you. I have heard from Crown prosecutors across the country who tell me discriminatory stereotypes continue to infect sexual assault trials on a regular basis. I have, in my own research, gathered many examples of cases that demonstrate the critical need for more and better training in sexual assault for legal professionals who work in this area.
I want to highlight three functions that I think this bill is a step towards. The first is just basic competence. The bill attempts to require a basic threshold level of competence in an area of law which is, at present, the subject of a public crisis of faith in the justice system and which is a difficult and at times complex area of law. We know that while judicial education is important in many areas, it has particular contours in the context of sexual assault, most particularly because of the ongoing role that problematic social assumptions about sexual violence and women and Indigeneity continue to play in these trials. You can be almost certain that a lack of understanding of the definition of consent or the parameters of section 276 will be supplemented with mythological thinking about rape and women and sexual violence.
Better education and training is one of the main strategies that I can think of for reducing the number of these cases, a disproportionate number of which involve young, Indigenous women. We should consider that in the context of the calls for justice for Indigenous women that were issued today. The racism that is mobilized against Indigenous women in some of these proceedings has to be directly addressed through education. I’m confident that there will be more of these unfortunate cases. I’m equally certain that the well-known reality of these types of cases contributes enormously, particularly in our digital era, to the barriers to reporting for some, if not many, sexual assault survivors.
It’s also important to note that the harms caused by judicial error in this legal context are different. Judges will always make mistakes. We have to expect that. But when errors occur with respect to basic substantive knowledge, often informed by stereotypical discriminatory thinking, the harm in the context of sexualized violence is different. Asking a sexual assault complainant to go through one of these proceedings a second time is almost unimaginable. It is almost unimaginable to think of doing this a first time, and the vast majority of individuals choose not to do that, but to impose that upon someone a second time because of a lack of understanding of basic, substantive knowledge of harm — That’s the first important function.
Second is the norm-setting function that I think Bill C-337 plays. In this area of law, it’s a much-needed norm-setting function. A couple of examples: Many sexual assault trials are, of course, conducted at the provincial level. This federal legislation and a move towards building the capacity of federally appointed judges will encourage provincial judges to follow suit. The clearest example of this is the steps that have now been taken in Prince Edward Island. A second example, and here I’m speculating, but I think it’s possible that the CJC’s commendable move to adopt a new policy mandating sexual assault training for newly appointed judges bears some connection to this proposed legislation. Those are the examples, but there would be others of a norm-setting function in terms of education for Crowns and for police.
The third function that this bill takes a step towards is that it promotes some transparency in judicial education. In my opinion, there is no threat to judicial independence by enhancing transparency regarding the training and competency of the judiciary. In fact, the traditional veil of secrecy that seems to cloak judicial education was in some ways antithetical to the principle of democracy that judicial independence is intended to serve.
I’ll stop there in expectation that you might have some questions for me.
The Chair: Thank you very much for your presentation. I think it raises many questions.
[Translation]
Senator Dupuis: Professor Craig, thank you for joining us this evening. I would like to draw your attention to the 2017 report of the Canadian Judicial Council. This public document recommended the removal of Justice Camp. In the report, the Canadian Judicial Council refers to human rights, that is, bias expressed through words, questions or comments to the Crown prosecutor, and questions to the victim during the trial. The report states that the judge defended himself by arguing that his behaviour was the product of “unconscious bias or ignorance,” not animus, hostility or ill feeling.
In this report, the Canadian Judicial Council seems to understand full well that particular issues come up because of the unacceptable conduct of certain judges. When you talk about errors in legal knowledge based on bias, “the lack of understanding,” is the issue really about knowledge? I agree with you when you talk about basic competence. We want to ensure that there is a minimum knowledge of the law, since it must be enforced. How will this bill address the reluctance of judges to comply with human rights legislation in this country when it comes to sexual violence trials?
[English]
Ms. Craig: Thank you for that question. I don’t think we should assume that all judges have a minimum understanding of the law. The Supreme Court of Canada’s decision earlier this month, or last month now, in W.L.S. vs. Her Majesty the Queen was yet another example of the court upholding the Court of Appeal’s decision to overturn an acquittal in a case where the trial judge made an error with respect to the definition of consent. That is a well-settled principle of law, 20 years old at this point. I have lots of examples in my research where judges make errors with respect to what is a basic component of what will always be a fundamental legal issue in every one of these proceedings, and that is the issue of consent. So no, unfortunately, I don’t think we should make that assumption.
Second, and more importantly related to your question, I think there is a really important connection between lack of substantive legal knowledge of things like the definition of consent or the rape shield provisions, the rules that exclude evidence of other sexual activity, those substantive legal concepts, and the stereotypical discriminatory thinking you’re referring to. When judges don’t understand we have an affirmative definition of consent, when they don’t understand how section 276 works, their social assumptions and powerful heuristics, biases and frankly, in the context of Indigenous women, racism infiltrate their reasoning and inform their application of the law.
It is correct to say that we have very progressive laws on the books. Our law of sexual assault in Canada, on the books, with some tweaking I think at the margins, is quite strong. The problem is often in its application and interpretation. What’s happening is that a lack of understanding of those laws, combined with social assumptions about sex and gender and women, results in these very problematic and disturbing outcomes.
[Translation]
Senator Boisvenu: Welcome, Ms. Craig. My question is a little sensitive. You have studied many judgments. In your opinion, what level of trust do Canadian women have in our judges? Have you observed any differences between younger and older victims, such as whether their trust is increasing or decreasing?
[English]
Ms. Craig: I’m sorry, senator. Some of your question was cut out. Could you repeat the last part of your question?
[Translation]
Senator Boisvenu: Yes. You seem to have a good knowledge of court judgments. In your opinion, has Canadian women’s trust in our judges improved or deteriorated over the years? Clearly, some judgments do not help to improve trust in the justice system. In your opinion, is there an age distinction to be made between younger and older victims of sexual assault in terms of the level of trust in the system?
[English]
Ms. Craig: I’m not sure. It’s fair to say and not hyperbolic to suggest that there is a current crisis of public faith across generations. Across generations, women of all ages — we have examples of this type of problematic outcome of cases involving women of all ages. These types of social assumptions or stereotypes play out differently depending on the factual context involved. Some of the social assumptions that operate in cases involving younger women and intoxicated women might not be as operative in cases involving older women — and I’m speculating — but my suggestion to you would be that the lack of faith is one that transcends generations.
Senator McIntyre: Thank you, Professor Craig, for answering our questions.
Clause 5 of Bill C-337 seeks to amend the code by requiring courts to provide written reasons for decisions in sexual offence trials. Obviously, there are benefits to providing written judgments in sexual offence cases. Are you satisfied that written decisions could enhance the transparency and accountability of the judiciary, as is stated in the bill’s preamble?
Ms. Craig: As a point of clarification, an earlier version of the bill required written reasons in all sexual assault proceedings. That clause was amended, and the current version would only require written reasons in cases where an oral recording wasn’t already entered into the record, and that never occurs.
My response to your question is somewhat indirect. I don’t think the current version of the bill does require that. But for the lack of resources and the issues with delay, had that continued to be a part of the proposed legislation, I think that would have done a lot in terms of accountability and transparency. As clause 5 is currently drafted, I don’t think it causes any problems with transparency, but I’m not inclined to think it would do much to increase transparency and accountability.
Senator Batters: Thank you very much, Professor Craig, for being with us today and providing your substantial knowledge about this issue to us.
Regarding your brief opening statement, I want to make sure that I understood correctly. I think you said this bill does three basic things: first, basic competence; second, a norm-setting function, but did I miss the third or did you run out of time and still wanted to speak about a third?
Ms. Craig: It was transparency: that it creates some transparency for judicial education and, potentially, it may also create a culture within the judiciary that is enthusiastic about engaging comprehensive training in this area.
Senator Batters: Thank you.
You were speaking in answer to a question from Senator Dupuis, I think it was, about how some judges may not, especially early on in their judicial career, have a level of expertise in a particular area. I practised law for many years, and I’ve seen many judges who were appointed to a general division of a Court of Queen’s Bench where they could be doing criminal trials soon, but they spent their entire working career practising corporate commercial or real estate law. They were well trained in their particular area, but they might not have practised any criminal law since they were new, starting-out lawyers, perhaps.
Those particular areas of criminal law, especially sexual assault cases, can be very complex. Maybe you would like to comment more about the types of complexities that can result from these types of cases when they have not had that sort of experience before.
Ms. Craig: That’s right. Certainly in my research, many of the examples I have drawn upon in cases from the last five years have involved judges whose substantive area prior to appointment didn’t involve any criminal law, which is a different policy question that has been raised from time to time in other contexts.
There are some basic areas of sexual assault law that are really quite well settled now; for example, the Ewanchuk definition of consent. At the same time, I would agree there are some fairly technical aspects to this area of law. Bill C-51 and some of the changes that have been adopted most recently may make some areas, like the relationship between sections 278 and 276 — third-party records, records in the possession of the accused and records that involve evidence of other sexual activity, technical and complicated. That’s the second thing.
First, there are some basic issues that judges shouldn’t be getting wrong. Second, there are issues that require training, particularly given the practice prior to appointment. Third, unlike other some areas of law — not some like domestic violence, but unlike many areas of law — we cannot underestimate the role that our social assumptions about human sexual behaviour, gendered behaviour, Indigenous women and sexualized violence play in the way we make assessments of credibility and in our application of these basic legal concepts. Without significant training, I think we would all be susceptible to making these types of errors.
Senator Lankin: Thank you very much for joining us. I appreciate so much the work that you do on an ongoing basis — your research — and the frank way you are sharing your views on this bill and importance of this kind of training.
My first question was going to be along the lines of Senator Batters’, and I appreciate she asked it much better than I would have. I understood your answer and appreciated it.
I will go to the area that touches upon transparency, and that’s reporting participation in training. Clause 4 of the bill currently sets out, along with some other things, the number of judges who attended at each seminar and the court on which they served would be reported out, and the number of sexual assault cases heard by judges who never participated in such a seminar would be reported out. We are about to hear an amendment that will change that significantly. It would, in the first case, take it up to a global level; it would be the number of judges who attend the seminar, not reporting on which court they serve. I would like you to comment on that. Personally, I don’t have a problem with that change.
The second part would delete the reference to the number of sexual assault cases heard by judges who have never participated in such a seminar. As far as I’m concerned, that’s anonymous. It doesn’t name the judge, it isn’t a naming and shaming, but it does give us information about the extent to which we are reaching judges who are actually sitting in the courtroom, hearing these cases and deciding on these cases. It doesn’t relate it to the findings or rulings in any case, or the arbiter comments or anything, so I am concerned about that amendment. You may not share that view, and I would like you to comment on your view of the role that would play in transparency or not.
Ms. Craig: I agree with you with respect to the first amendment, that revising the proposed legislation so that it didn’t include a report on which court judges were serving on probably makes sense in terms of wanting to ensure that there wasn’t a way to potentially identify certain judges. That would be obviously very problematic.
I don’t have strong feelings to the second amendment. I see this legislation as an important first step. I see the transparency issue or initiative as really about norm-setting. What’s most important, I think, in this legislation is asking the CJC to provide descriptions of the type of training. I think actually asking for even more detail would be potentially helpful. Certainly it was not long ago in my research that I couldn’t get any information from the CJC in any detail about what types of training were provided. I agree that something is lost by not reporting the number who have never participated in such a seminar. It would be hard to argue with your point on that, that there is something lost in that. But even with that amendment, I still think this is a worthwhile and positive step in terms of at least a first step, and it certainly maintains and should respond to the critiques regarding judicial independence with respect to this aspect of the bill.
Senator Lankin: Thank you.
Senator Boniface: My question is a slight follow-on to Senator Lankin’s. When this is all in place, how do we measure success as a result of the impact of the bill? We can go to training, no matter who we are, and we can sit through the training and we can either choose to learn or not learn. I’m wondering how we ensure that this is a success and, in turn, how do we measure that?
Ms. Craig: I may not have an answer for you. I think, oddly in some ways, this bill has already met with some success in terms of my speculation that it is the impetus for some of the mandated judicial education that’s now occurring across the country. That’s already a success. I think there has been a shift in the last few years in terms of an appetite among judges to receive this type of training, and I think legislative initiatives like this are hugely important in moving that agenda forward. I do think there has been a shift among the judiciary, on my optimistic days.
In terms of how will we measure that, I’m going to keep doing my job and I’m unfortunately going to keep finding these cases. A superior social scientist might be able to provide you with a more rigorous answer.
In terms of the norm-setting function, I think with the expressive value that legislation like this plays, we will see that effect, and the reporting mechanism is a positive move. Sure, it could be better, but it’s a positive move.
Senator Boniface: Thank you.
Senator Pate: Thank you very much, Professor Craig, for all the work you’ve done in this respect and, in particular, the material you’ve published.
My question is about the judicial education. I apologize if I missed it and you’ve already spoken about it. Have you been specifically consulted to make recommendations about the type of judicial education that would be useful for judges to have in this country? Have you been approached by law societies to recommend potential training materials for lawyers?
Ms. Craig: I won’t speak about specifics around judicial education in terms of what involvement I’ve had with providing judicial education. I have not been approached by — I’m just making sure I’m right. I’ve not been approached by any law society with respect to ongoing professional development or training for lawyers.
I really appreciate your question, because I think that’s an enormous piece of the puzzle. There are always three intersecting roles in any of these proceedings, and when any of those three roles doesn’t do their job — trial judge, Crown attorney, defence lawyer — or exceeds their ethical boundaries or fails in their substantive knowledge, it’s very difficult for the other two to maintain a just proceeding, so I appreciate that question.
I have done some training with Crowns in some provinces.
The Chair: Thank you, Professor Craig, for your contribution to our reflection. I think all my colleagues around the table appreciate your dedication to studying this issue. As you said, it will stay in the public domain for many years to come. Your work is very much appreciated by all of us and the public in general who follow the progress of Canadian society in relation to how to address sexual violence and how the system should be responsive to it. Thank you so much for having made yourself available tonight. I know it’s late where you are, but we are much indebted to you and hope to hear you soon in our work around this table. Thank you very much, professor.
Ms. Craig: My pleasure. Thank you.
The Chair: Honourable senators, we will take a few moments to disconnect from our witness, but I ask you to stay around the table because we will move to clause-by-clause consideration of Bill C-337.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-337, An Act to Amend the Judges Act and the Criminal Code (sexual assault)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed that the short title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: I will repeat the question. Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: Agreed.
On clause 3, I understand we have —
[Translation]
Senator Pratte, do you have an amendment?
Senator Pratte: I have an amendment to clause 2.
The Chair: Okay. Senator Pratte, please go ahead and move the amendment, identified by code AP-2.2.
[English]
Do honourable senators have a copy of the amendment?
[Translation]
You may proceed, Senator Pratte.
Senator Pratte: It is moved:
That Bill C-337 be amended in clause 2, on page 2, by replacing lines 26 to 37 with the following:
“(b) has agreed to engage in continuing legal education in respect of matters related to sexual assault law and social context, including by attending seminars established under paragraph 60(2)(b) on these matters.”.
The Chair: Can you explain that?
Senator Pratte: Basically, this is the first in a series of amendments stemming from concerns expressed by several participants in the House of Commons about the practical problem of requiring all candidates for the position of judge to undergo training, when we know that only one tenth of the candidates will actually be appointed.
They are based on a piece of legislation from Prince Edward Island, which has found a way to get around the problem. Instead of requiring all candidates for judicial positions to be trained, they are asked to formally commit to continuing education if they are appointed. This gets around two practical problems, including the problem of providing training to those who will never be appointed as judges. The second practical problem presented to us, particularly by the Canadian Judicial Council, is that applications for judicial positions are confidential. So organizing courses for all candidates, when they are not supposed to know who is a candidate for a judicial position, was a major problem.
Therefore, candidates for federal judicial appointments, appointed by the federal government, will be required to formally commit to not only one or two courses, but also to continuing education in sexual assault law.
[English]
The Chair: Questions or comments on the proposal? I will put the question.
Shall the amendment, as introduced by Honourable Senator Pratte, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed.
[Translation]
I understand that there is also a proposed amendment in clause 3. The amendment is on a page identified at the top by the code AP-3.3. Do all senators have a copy of the amendment? Senator Pratte, please move the amendment.
[English]
Senator Pratte: I move:
That Bill C-337 be amended in clause 3, on page 3, by replacing lines 5 to 8 with the following:
“al assault law and social context
(i) that have been developed after consultation with persons the Council considers appropriate, such as sexual assault survivors and groups and organizations that support them, and
(ii) that include instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants;”.
The Chair: Explanation.
Senator Pratte: This is a slight change to what is required in the bill in its current form, and the reason for this is that we’ve been told by many stakeholders that there was a risk that because the bill required that the seminars or the courses be developed with consultation only with victims and victims’ groups, that could cause a problem and that in certain instances even defence counsel could appeal a decision by saying the judge wasn’t fair because he or she had training that was designed only in consultation with victims and victims’ groups.
The way the amendment is set up is that the council would still have to continue to consult victims and victims’ groups but could also consult other persons the council considers appropriate. Defence counsel, for instance, is an example. Of course, the description of the courses remains the same. The only change is that the council could consult other persons that they deem appropriate but would still be required to consult sexual assault survivors and groups and organizations that support them.
[Translation]
The Chair: Do you have any questions or comments about Senator Pratte’s proposal?
Senator Carignan: It’s crystal clear.
The Chair: I understand that the honourable senators are ready to vote.
Shall Senator Pratte’s amendment to clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chair: Okay.
We will now move to clause 4 of the bill, to which Senator Pratte is proposing an amendment. Do you want to move your amendment? The amendment is identified by the code AP-4.3. Do all honourable senators have a copy of the amendment?
Hon. Senators: Yes.
The Chair: Okay. Senator Pratte, would you like to introduce it?
Senator Pratte: It is moved:
Que le projet de loi C-337 soit modifié, à l’article 4, à la page 3, par substitution, aux lignes 20 à 23, de ce qui suit :
“loque.”.
In French, it’s a little odd.
The Chair: Can you introduce it in English as well? It is clearer in the English version.
[English]
Senator Pratte: I move:
That Bill C-337 be amended in clause 4, on page 3, replacing lines 18 to 22 with the following:
“offered; and
(b) the number of judges who attended each seminar.”.
[Translation]
The Chair: Can you explain your amendment?
[English]
Senator Pratte: This is the amendment that Senator Lankin was alluding to earlier. This is the reporting part for the Canadian Judicial Council. There was a lot of concern expressed by many stakeholders about this part of the bill because there was a fear it would lead to naming and shaming judges. What the amendment does is to still maintain that the judicial council will have to publish the title and description of all the courses that are offered in sexual assault law and the number of judges who attended each seminar, but the amendment removes the court on which judges sit. The reason for that is they’re small courts at the federally appointed justices level, and it would be easy to know — if there are two judges in a court, it’s quite easy. It also removes also paragraph (c), which required that the judicial council also publish the number of sexual assault cases heard by judges who have participated in such a seminar and who have never participated in such a seminar. The concern here was that by having a number of sexual assault cases heard by judges and the number of judges who have also never participated in a seminar, you could end up with a very small number of judges, and if you look at the cases that have been heard, you can probably quite easily get to naming and shaming a judge on social media and so on. That concern was expressed that it also infringes on judicial independence. My belief is once you get the council to report on the title and description of all the courses that are offered and the number of judges that followed the courses who are at the federally appointed level here, you could get a pretty good idea of whether the courses are followed or not, and we should stop there.
[Translation]
The Chair: Do you have any comments or questions for Senator Pratte?
[English]
Senator Lankin: Thank you for your work on this, Senator Pratte. I appreciate the effort you’ve undertaken in consulting with the author of the bill and the sponsor of the bill in the Senate and with other members of this committee. I understand Senator Dalphond has been engaged. I wasn’t, so you might be hearing my comments for the first time. I apologize for that, but there wasn’t a previous opportunity for us to engage apparently.
On this particular amendment, I think you heard my comment, and it’s with respect to the removing of paragraph (c) in clause 4, which is the number of sexual assault cases heard by judges who have never participated in such a seminar.
First of all, I’ve heard no evidence that supports that the cases are so few and the judges are so few that you would be able by deduction to come up with who they are and, with some credibility, name and shame. That could be true; it could not be true. I’ve heard no evidence to that.
You’ve indicated that you heard from a number of stakeholders in this area. I’ve heard from a number of women’s organizations very opposed to this. So, again, perhaps we’re talking two different worlds. In part, we haven’t been able to resolve that based on what we have heard here.
Let me be clear that I support this bill completely. I support the first two amendments that you put forward, and I actually think they improve the bill. I’m practical, and if this is what it takes to get this through, then I’ll do that. But the fact that the only place from where I’ve heard this concern comes from the Canadian Judicial Council and a couple of other pockets in the justice system that have responded to this, and not from victims’ organizations, victims themselves, those who support them and others who are doing research in this area and see the trends that have happened in the kinds of rulings — what we’re trying to get at in terms of the need for this education.
I find myself supportive of the first part of your amendment. I don’t have any objection to that. I think the global reporting in terms of the number of judges who have attended is sufficient. We don’t need to have it court by court. But I don’t support the removal of 62.1(1)(c). I guess in there I’ve asserted that I’ve heard from a number of stakeholders opposed to this. Have you heard from those stakeholders? Have you reached out to stakeholders in that area?
Second, could you talk about the evidentiary base to the statement that the judicial council has made that you would be able to deduce who those were? In our research in trying to find out the reason for this rationale, we were informed that it could be a method of tracking judges’ absenteeism, which I don’t really understand. I don’t know if you heard that. That may be a one-off comment, and I won’t ask you to address that, then, but anything you want to respond to in order to bring me over to the light side instead of the dark side that I remain on right now.
Senator Pratte: Should I reply?
The Chair: Maybe all the questions will be put to you and at the end —
Senator Pratte: I’ll respond at the end.
Senator Dalphond: Maybe I will provide some answers, because I was intending to comment on the removal of subparagraph (c), which is the number of sexual cases heard by judges who haven’t participated in such a seminar. Take, for example, the case of a Crown attorney specializing in sexual offences being appointed as a judge. That person would not be following the training and would not be following these seminars, and the CJC will have to report that that judge has heard 150 or 450 cases that year dealing with sexual offences. People could believe that he was not qualified to hear them when he was probably more qualified to hear than some others. The drafting was problematic, I think.
The second thing is that the amendment will bring section 62.1 of the Judges Act in line with what we’ve done in Bill C-58 regarding the disclosure of information regarding expenses of judges to attend conferences and seminars. Now you have the same information that is provided, the title, the duration, the dates and the number of judges for each court that attended the conference. That would be more or less the same type of information here, except here the content would be provided on top of the other information.
For me, I think the amendment makes sense. I will conclude by saying that I noticed Professor Craig, when she was asked to comment about this, say that she had no hard feeling about it. She said, yes, removing it will deprive you of some information. At the same time, she was not feeling that it was a necessary thing because the bill’s purpose is essentially to send a message that better education and better training is better for justice, for Canadians and for everybody participating in the justice system.
Senator Pate: Thank you, Senator Pratte, for doing work that often the critic is doing. It’s much appreciated.
The question I had here was a concern similar to that of some others around taking out (c), but also, did you look at the possibility of getting statistics on a provincial, territorial or regional basis? There have been some suggestions that some areas have been more problematic, particularly in areas where there are more Indigenous women. I’m curious whether that came up in your discussions and if that played at all, as opposed to going court by court, going by region or province or territory.
[Translation]
Senator Dupuis: My first question is about the connection between paragraph (b) and paragraph (c). I understand that the intent is to remove paragraph (c) and the last part of paragraph (b). In other words, a number of people in the judicial community seem to agree with disclosing the number of judges who attended each seminar, but not the court on which they sit. What is the relationship between that and paragraph (c), which deals with the number of sexual assault cases heard by judges who have never participated in such a seminar and the judges’ identities? In other words, it seems to me that paragraph (c) is of a different nature than paragraph (b), in that paragraph (c) refers directly to the decision of a chief justice to assign cases to judges. What’s the connection? Is that the real reason behind the proposal to amend and remove paragraph (c), the number of sexual assault cases heard by judges who have never participated in such a seminar?
Senator McIntyre: Senator Pratte, if I have understood your argument correctly, if clause 4 is not amended as you suggest, it could become a tool for evaluating judicial performance, as you say. Is that correct? In other words, the purpose of the amendment is to ensure that Bill C-337 does not inadvertently compromise judicial independence. Is that it?
Senator Pratte: Yes, exactly.
Senator McIntyre: Thank you.
[English]
Senator Lankin: I actually would like to hear Senator Pratte’s response. I want to respond to what Senator Dalphond said. I can do that and then I might have a further commentary after Senator Pratte. It’s your option, chair, how you would like to proceed.
The Chair: I can certainly ask Senator Pratte or Senator Dalphond to make comments in relation to the questions or comments that have been raised by honourable senators.
Senator Pratte: I can start trying to respond to some of the comments that were made or some of the questions that were posed.
The first thing, adding to what Senator Dalphond said, is that one fear is certainly that paragraph (c) sends a very simplistic message. If you don’t agree or if you’re unhappy about a decision, it’s probably because the judge or the justice in question didn’t follow one or two courses or whatever. That’s one concern that was certainly put forward.
In terms of consultation, I’ll be very frank. I did not hold extensive consultations. My very modest goal was to help in the adoption of the bill. There was concern, obviously, expressed by many senators. All I tried to do is to see what changes could be made that would alleviate the concerns regarding judicial independence and, at the same time, allow us to meet the goal that was the sponsor’s goal and Ms. Ambrose’s goal, which was to require better training for judges. I did not consult extensively. I just had discussions with Senator Andreychuk, Ms. Ambrose, and some of the senators who had expressed their concerns or their reservations about the bill. That’s all I did.
Senator Pate asked about provinces. No, I did not look at statistics on provinces.
[Translation]
Senator Dupuis asked about the relationship between paragraphs (b) and (c). I would say that, in both cases, the concern is that the second part of paragraph (b) and the entirety of paragraph (c) could lead to the identification and what is called “shaming” of judges, the identification of judges who have rendered a decision that is unpopular with some and it could be demonstrated that they have not taken this or that course. As Senator Dalphond indicated, this could lead to a somewhat rash or simplistic reasoning. So that’s the relationship, so to speak, between the two parts.
[English]
Senator Boniface: I don’t want to confuse things, but I’m wondering whether some of the confusion revolves around the term “cases.” Are we talking strictly around sexual assault, but if there are multiple sexual assault charges against an individual? Are we talking about the individual? Let’s say somebody has seven charges from seven different incidents involving the same victim or something like that. What is the case? Is it the collective? I would say if it’s the collective, then there is less likelihood that you would actually be able to identify a judge. I’m thinking, as you use terminology, that it is convoluted.
Senator Lankin: Again, I thank you for the work you did, and I acknowledge that it is about being able to progress this bill, and I’m in support of that. However, I’m digging down into the actual application of the specific amendment.
The first comment I want to make in response to what Senator Dalphond said is that he offered the case of a Crown who may have worked in specialized sexual assault courts and is well trained in that. As I understand it, if that person was appointed to become a judge, within the first year, they have to take the first part of the mandatory training and, within the next two the five years, they have to take the second part, which includes this, so they will have to take the training.
Fair enough, I gave the response to what you said about bringing them forward.
Secondly, I would offer that someone who has been through that kind of training and expertise that has developed from actually trying these kinds of cases, being the prosecutor in these kinds of cases, would to me be the kind of person who would sign up first to take any improved training that comes along, any new courses that are developed or anything that reflects the latest decisions from the Supreme Court. I find that that’s not a practical bar to actually reporting on the numbers. If there are reasonable explanations, then there are reasonable explanations for the numbers.
Thirdly, you referred to Professor Craig, and I would say she didn’t say she had hard feelings about this; I would say she said it does take something away, but for her this bill is an important first step and an important measure of accountability and reporting and the content of the training, which they had never been able to get at before, and I applaud those as forward steps. Again, I think this bill serves a really important process and, as the professor said, probably has already achieved a lot, and further achievements we will be able to measure and speak to I think with pride down the road.
The fourth thing that I want to say, Senator Pratte, is that I don’t think there is a connection between someone who is unhappy about the case and assuming that it was presided over by a judge who has not taken the training. First of all, you could be very happy with the way in which it was conducted or not, but that’s the not the issue. The issue is what kind of coverage are we getting in terms of those members of the bench who are presiding over these cases in terms of knowing that they have been exposed to the education, and now we’re not talking about the ones who are new coming in and who will have to, under the court’s own administrative rules, take these two mandatory programs and hopefully ongoing education in sexual assault and other matters as referred to in the bill. But there are a lot of people who have not.
I think what we can measure is important to inform us. If there are no further decisions that raise the question or the ire of Canadians, that would be wonderful. If there are and they continue, or the numbers grow, then I want to understand what kind of impact we are having, and I think by having important indicators that we can measure, we can then do the research to try to understand what’s behind them, which is important. I think we would be losing something here.
The last thing I would speak to is the relationship between (b) and (c). If (b) stood as it had in the original bill, which is to report on the number of judges who attended each seminar and the court on which they serve, and then (c), which is the number of sexual assault cases heard by judges who have never participated in the seminar, I can see the argument you make about starting to narrow down and try and figure out the small numbers because you actually have reference to specific courts and they are small courts, like you said, and that could be a problem. But if that language is changed as you propose in (b), I don’t understand the same level of concern with (c).
Mr. Chair, one of the things I would like to ask, and it might be with the permission of the mover of the motion — if not, you can instruct me on how we might accomplish this — is the way in which we can vote on the first part of the amendment, which would be to amend (b), and then the second part of the amendment, which is to delete (c), if that can be voted on separately.
Senator Dalphond: Before the amendment, I would like to make a comment.
The Chair: Yes, and the chair would also want to bring to the attention of the honourable senators two briefs that we have received that, in my opinion, highlight the constitutional question mark that there is around the bill and clause 4 as it stands. If you would allow me, I would want to read into the record the brief submitted on behalf of the Canadian Superior Court Judges Association to this committee, and I would like to quote page 6, which specifically addresses this section and the comments made by honourable senators around the table.
By requiring the CJC to report to the Minister on the number of judges who have attended the seminar prescribed by the bill, and to report the number of sexual-assault cases heard by judges who have never taken the seminar, Bill C-337 is imposing a type of reporting function on the CJC which is unprecedented.
The point I want to highlight:
It is a subordination of the judiciary to the executive branch and to Parliament.
Even worse is the risk that compliance with the reporting obligation will undermine public confidence in the judiciary. I do not think it is overstated to call proposed s. 62.1 a shaming exercise. The object of the disclosure of the “number of sexual assault cases heard by judges who have never participated in such a seminar” is to highlight how many cases are heard by purportedly untrained judges. By design, this is to call into question the quality of the administration of justice and it will necessarily undermine confidence in the judiciary.
Indirectly but tangibly, this obligation also interferes with decisions regarding the assignment of judges, a matter that has been held to be protected by the principle of judicial independence.
This is the brief that we have received that raises, of course, constitutional issues.
Then from the Quebec bar brief, I will read the following:
[Translation]
Then, by requiring the Canadian Judicial Council to report on training taken by members of the judiciary, including “the number of sexual assault cases heard by judges who have never participated in such a seminar”, the concern is that the bill will threaten judicial independence.
[English]
In other words, there is a risk that this bill could be challenged constitutionally on the principle of judicial independence, and as the mover mentioned to us in her opening remarks, the objective is not to adopt a bill that could run the risk of being challenged in court. As we have heard from Professor Craig, this does not change the overall objective of the bill, which is to establish norms.
I wanted to bring that to the attention of honourable senators in considering the amendment proposed by Senator Pratte.
[Translation]
I think Senator Dalphond also has something to add.
[English]
Senator Dalphond: I circled in yellow exactly the passage you just read from the brief from the Canadian Superior Courts Judges Association. I also want to highlight a passage from the Advocates’ Society of Ontario brief. It states:
Moreover, the proposed section 62.1(1)(c) necessarily carries an implication that judicial assignment decisions and practices affect the quality of judicial decision-making, for which the judiciary will essentially be accountable to Parliament under that section. However, the quality of decision-making by trial judges, particularly on the question of whether a judge has displayed a correct understanding and application of the law, is properly a matter for appellate review. It is not a suitable matter for any form of parliamentary or executive oversight.
Some other briefs also refer to the ability of the Chief Justice to assign judges, especially to respond to the Jordan case, which requires cases to proceed within short delays. That’s why this amendment proposed by Senator Pratte is being supported by many stakeholders.
The Chair: Thank you. I understand there are no further interventions.
[Translation]
Senator Dupuis: Yes, I would like to say a few more words on this issue that interests us all. In terms of section 62.1, Mr. Chair, you just read an excerpt from the submission of the Superior Courts Judges Association. That would be on page 5 or 6.
The Chair: Page 6.
Senator Dupuis: If I recall correctly what the Judges Association tells us, section 62.1 is the problem.
The Chair: The whole subsection.
Senator Dupuis: All of section 62.1 is problematic from the judges’ point of view, because it would require reporting to the minister. I understand that very well, and that is their position. This amendment does not affect section 62.1. It concerns in part paragraphs (b) and (c). I do not see the need for this amendment because it does not address the substantive issue raised by the Superior Courts Judges Association.
Senator Pratte: I have not consulted much while my amendments were being drafted, but I did consult with the Canadian Superior Courts Judges Association and others to find a compromise. They are not here, so I can’t speak for them. I thought I would find a way for the amendment to make things more acceptable from their point of view. That was the impression I got from those discussions.
[English]
Senator Batters: Just a short point: I think what has been removed would be the parts that would be most likely to identify and I guess draw the ire of — I recognize Senator Dupuis has said they’re objecting to the entire section. However, what is left is really a far cry from what was there before. I think with all of that in mind, it is no longer really possible to identify, so I think this would be viewed to be considerably more acceptable than it was before, and I think that it’s acceptable as is now.
The Chair: Thank you.
Senator Lankin: Mr. Chair, I appreciate you reading into the record those submissions. In fact, I read them, and I made reference to the fact that I know there were some parts of the justice system that supported this, but there are other stakeholders who have valid ideas as well that I hope we would undertake to consider.
The last question that I had asked, chair, is it possible either with the agreement of the mover or with your procedural guidance to take a vote on (b) and (c), the impact of the amendments, separately? I see the clerk shaking her head, so maybe procedurally you can’t. Maybe with the agreement of the mover, we could deal with the two parts separately.
Senator Pratte: If it’s possible procedurally, I don’t have any difficulty in dealing with both parts separately.
The Chair: Then I will call the vote separately on section 62.1(1), and then on (a), and then I will split the various paragraphs. But on (b), I will take into account that Senator Pratte has an amendment that, in fact, if you take (b), the number of judges who attend each seminar, according to the motion of Senator Pratte, there would be a period after “seminar.” Then I will ask the question on the amendment of Senator Pratte first, before I call the vote on (b). Then I will move on to (c). Is it clear, honourable senators? The procedure is clear for everyone?
Senator Boniface: In (b), there is an “and” there. Are you taking it out?
The Chair: Yes, of course. The act is amended by adding the following after section 62: Report seminar, 62.1(1).
Is it agreed, honourable senators, that the paragraph be carried?
Hon. Senators: Agreed.
The Chair: Shall paragraph (a) carry?
Hon. Senators: Agreed.
The Chair: Shall paragraph (b), as amended by the proposed amendment of Senator Pratte, carry?
Hon. Senators: Agreed.
The Chair: Shall paragraph (b), as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall paragraph (c) carry?
[Translation]
Senator Pratte: Just to be clear, we’re at paragraph (c). My amendment proposes to delete paragraph (c). We are voting on amendments.
The Chair: Exactly.
[English]
The vote is essentially to maintain paragraph (c) as is or to delete paragraph (c), as the objective of the amendment of Senator Pratte was aiming at. In other words, either we accept the proposal of Senator Lankin, who wants to maintain (c), or, of course, we vote in support of Senator Pratte, which is to delete subparagraph (c).
I will put the question differently so that everyone understands. I could reverse the question and rejig it the other way. Those who support paragraph (c) vote in favour of it; those who are against paragraph (c) will vote against it. Is it clear?
Senator Lankin: Is that what we’re voting on, Senator Pratte’s amendment to delete?
The Chair: No, we will vote the other way. We will vote in support of paragraph (c). If you are of the opinion that paragraph (c) should be maintained — that is, to vote against Senator Pratte — you have to vote in favour of maintaining paragraph (c), as you request.
Senator Lankin: Can I have a recorded vote, please?
The Chair: There will be a recorded vote. All those in favour of maintaining paragraph (c)?
[Translation]
Keli Hogan, Clerk of the Committee: The Honourable Senator Joyal, P.C.?
Senator Joyal: No.
Ms. Hogan: The Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Hogan: The Honourable Senator Boniface?
Senator Boniface: Yes.
Ms. Hogan: The Honourable Senator Busson?
Senator Busson: No.
Ms. Hogan: The Honourable Senator Carignan, P.C.?
Senator Carignan: No.
Ms. Hogan: The Honourable Senator Dalphond?
Senator Dalphond: No.
Ms. Hogan: The Honourable Senator Dupuis?
Senator Dupuis: I am in favour of keeping it, so I am against the amendment.
The Chair: No, you’re for it.
Senator Pratte: You are in favour.
Senator Dupuis: I don’t want it removed.
The Chair: Then you’re for it.
Senator Dupuis: That’s what I said: I’m in favour of keeping it.
The Chair: Yes.
Ms. Hogan: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Hogan: The Honourable Senator Lankin, P.C.?
Senator Lankin: Yes.
Ms. Hogan: The Honourable Senator McIntyre?
Senator McIntyre: No.
Ms. Hogan: The Honourable Senator Pratte?
Senator Pratte: No.
Ms. Hogan: Yeas: 3; nays: 9; abstentions: none.
[English]
The Chair: So paragraph (c) is deleted.
Shall clause 4, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall the short title carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: I understand, on the preamble, because we have amended the proposed act, there are proposals of amendments to the preamble.
[Translation]
I will make sure that all honourable senators have a copy of the various amendments. There are three, if I remember correctly. Honourable senators, I would then suggest that you look at the preamble to the bill on page 1.
[English]
On page 1, if you want to take the preamble of the bill, which is all included on page 1, and I will suggest that you have the bill in front of you because, of course, it refers to various lines of the page, and in order for you to be able to follow clearly what is being proposed by Senator Dalphond, it’s really essential that you have the preamble page in front of you.
Honourable Senator Dalphond, would you introduce the first suggestion of amendment that you have in the preamble?
Senator Dalphond: It is on page 1 of the bill, in the preamble, and that would be the seventh preamble if you put a number beside each.
That Bill C-337 be amended in the preamble, on page 1, by replacing lines 18 to 20 with the following:
“Whereas Parliament wishes to be made aware of seminars offered to federally appointed judges, including in respect of matters related to sexual assault law and social context, and judges’ participation to the seminars;”.
The Chair: Explanation.
Senator Dalphond: Essentially, that replaces the seventh whereas by a whereas that is more comprehensive, because you remember that the bill was amended in the House of Commons to add reference to social context. Since we have also amended the sections to refer to judges’ participation to the seminar, an amendment to the preamble is introduced.
Senator Batters: I think there is perhaps just a small typo. The last line of your preamble amendment, it should be I think judges’ participation “in” the seminars, not “to” the seminars.
The Chair: Yes, exactly.
Senator Dalphond: It is the same in French, if we are correcting. Senator Batters is making a good point. In French, it says “ces formations,” but I think the proper word is “colloques” which has used as a translation for seminars every else in the bill.
The Chair: The bill translates the word seminars by “colloques” so the vocabulary should be harmonized. As Senator Dupuis likes to remind us, there is a legal concept.
Questions or comments to Senator Dalphond about the proposed amendments to the preamble? Shall the amendment to the preamble as proposed by Senator Dalphond carry?
Hon. Senators: Agreed.
The Chair: The next amendment to the preamble is identified under the number PJD-PR2. Do honourable senators have a copy of the amendment?
Senator Dalphond: This deals with the eighth whereas. I move:
That Bill C-337 be amended in the preamble, on page 1, by replacing lines 21 to 24 with the following:
“Whereas it is desirable that persons seeking to be appointed to the judiciary undertake to complete training, particularly on sexual assault law and social context;”.
The Chair: Explanation.
Senator Dalphond: First, the whereas was, strictly speaking, not exact because it says whereas because lawyers seeking to be appointed. There are also provincial judges who are appointed to superior courts, not only lawyers. Since we have amended the corresponding provision, I think that the wish of Parliament is that it be desirable that they undertake to complete training. That’s what the bill as amended now provides, that the candidates will undertake to follow courses and to complete training if they are appointed.
[Translation]
Senator Dupuis: I had a question. Does the new paragraph introduced by Senator Dalphond not add something different from the current eighth paragraph? In other words, there seem to be two different ideas in each of those paragraphs. I wonder why he is not adding it as a new paragraph.
Senator Dalphond: The answer is that I am replacing the paragraph that refers, first, to lawyers and, second, to:
[English]
“required to have completed sexual assault law training, judges may be assigned to hear sexual cases without such training.”
[Translation]
In line with the amendments we made earlier, the second part of the sentence no longer makes sense. So that entire part must disappear.
Senator Dupuis: My second question is about the choice of the term “desirable” or “souhaitable.” If I understood the amendment that was adopted earlier correctly, the proposal was to make it mandatory — The wording “a accepté de convenir de suivre” is odd, but, in short, we came up with the wording for the amendment. However, we are taking a step back, because we are saying desirable, not mandatory. Can I ask what motivated that word choice?
Senator Dalphond: That’s a good question.
[English]
My first draft stated, “Whereas it is imperative that the person seeking to be appointed . . . .”
[Translation]
In the discussions we had with the drafter and the others, it was suggested that I put “whereas it is desirable” instead, because it’s only in the preamble, and we can find the obligation as such later in the text of the legislation. But Senator Dupuis, I am not opposed to the idea of saying, if you prefer, “whereas it is imperative,” and, in French, “qu’il est impératif que les personnes souhaitant.” My original idea was to make it a mandatory component instead of a desire. But it’s up to you, I’m open.
Senator Dupuis: Generally speaking, the preamble of a piece of legislation contains items that are considered necessary. I think that, because of the wording we have chosen in the text of the amendment itself, we are taking it back one step by indicating that it is “desirable” or “souhaitable,” because if we believe that it must be done, then it must be done. That is why I would encourage you to reconsider the wording.
Senator Dalphond: That it is “imperative” rather than “desirable.”
Senator Dupuis: I want to raise an important issue, that if the legislation is ambiguous, when the courts are called upon to interpret it, they will try to determine what the lawmaker’s intention was, not the drafter’s. I would prefer that the choice be made by us, as lawmakers, rather than according to the drafter’s preference. Thank you.
Senator Dalphond: If I have the committee’s consent, I will replace the word “souhaitable” with the word “impératif” and, in English —
[English]
— “desirable” by “imperative.”
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Batters: To make it a bit clearer, where it’s saying right now “whereas it is desirable” — or imperative now — “that persons seeking to be appointed to the judiciary undertake to complete training, particularly on sexual assault law and social context” — given that this entire bill is about training on sexual assault law and social context, if we go with the wording that’s proposed right now, it’s saying that it’s imperative that people wanting to be appointed to the judiciary undertake to complete training. That’s a separate thought. Obviously, we want them to complete training. I don’t think that’s what we want the focus to be on. I would suggest that it would be clearer on this particular one to say “to complete training” — delete the comma, delete the word “particularly” and just say “complete training on sexual assault law and social context.” I would propose that would be a clearer way to word it.
Senator Dalphond: I agree with this.
Senator Batters: Thank you.
Senator Pratte: I suddenly have a revelation. The way the amendment to the preamble is drafted, it says “to undertake to complete training.” In the amendment we made to the bill, there’s a difference. They should undertake to engage in continuing legal education. This is very different. There’s a notion that it’s continuing education. That’s one of the reasons why many stakeholders thought the amended version was better than the original version. The idea that you complete training — you follow one course and it’s over — that’s not what we want to —
So I would suggest that, if it’s possible —
[Translation]
The Chair: To undertake continuing education?
Senator Pratte: Yes, that’s right.
Senator Dupuis: It’s fine in French. The problem is in English: “undertake to complete training.”
[English]
Senator Pratte: No. “Undertake to engage in continuing legal education.”
The Chair: Just a second. We are now drafting around the table.
Senator Batters: It might be simpler to just say “judiciary undertake training,” and take out the words “to complete.” Of course that continues, but if we just take that out.
[Translation]
The Chair: Yes, that would be simpler. In French—
Senator Dupuis: Mr. Chair, if I may, I propose the following: “undertake training on sexual assault law and social context.”
The Chair: Let me read it again to ensure that the minutes reflect the intention of the honourable senators.
[English]
“Whereas it is imperative that the person seeking to be appointed to the judiciary undertake training on sexual assault law and social context.”
[Translation]
In French:
“qu’il est impératif que les personnes souhaitant être nommées juges s’engagent à suivre de la formation sur le droit et le contexte relatifs aux agressions sexuelles;”
Does that work, Senator Pratte?
Senator Pratte: Yes.
The Chair: But it’s not your amendment, it’s Senator Dalphond’s. I should have asked him, but you are the one who raised the objection.
Senator Dalphond: That’s all fine with me. I had written it in French, and there is almost no change.
[English]
I’m happy with it. I should have consulted with Senator Batters ahead of time, because it would have been faster. Thank you, Senator Batters.
The Chair: Is it agreed, honourable senators, that the proposed amendments to the preamble as introduced — and I should say corrected — by this committee on the preamble of the bill be adopted?
Hon. Senators: Agreed.
The Chair: Agreed.
[Translation]
Let’s continue with the last amendment to the preamble, under code PJD-1.
[English]
Does everyone have a copy of the amendment?
[Translation]
So I’ll ask Senator Dalphond to kindly introduce it.
[English]
Senator Dalphond: Yes. I move:
That Bill C-337 be amended in the preamble, on page 1, by replacing line 25 with the following:
“And whereas reasons for decisions in sexual”.
That’s the first line.
[Translation]
The Chair: And in French?
Senator Dalphond: “procès pour agression sexuelle sont motivées,”.
The Chair: So lines 31 and 32 on page 1. The explanations, please?
[English]
Senator Dalphond: Essentially, it’s a kind of typo. When the House of Commons amended the bill, they added the option that it’s not only written reasons but it could also be oral reasons that are in the minutes. Thus, the “whereas” should remove the word “written” because it contradicts the amendment that was made by the House of Commons.
The Chair: Any questions? Is the amendment proposed by Senator Dalphond carried?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed, honourable senators, that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Agreed.
Does the committee wish to consider appending observations to the report?
Senator Dyck: There was a copy included, but I would like to amend it slightly. Based on some of the witnesses we heard this evening, we need to be more specific in the language. I would suggest something along the lines of the brief from Professor Sheehy. I would suggest something along the lines —
The Chair: Just a second. I will make sure all honourable senators have a copy of what you’re going to read, Senator Dyck.
Senator Dyck: I didn’t submit anything. I’m just submitting it now. There was something in the package from Senator Dalphond.
The Chair: If you want to wait, I’ll make sure the proposal is circulated around the table so everyone has it before them, to be sure we can follow what you propose.
[Translation]
The proposal is entitled “Observations/Bill C-337/PJD.” Do you have it, senator?
Senator Dupuis: Yes, I do now.
The Chair: Very well.
[English]
Senator Dyck, you have the floor.
Senator Dyck: I looked at this, and I thought it was good, but I thought perhaps it could be more explicit. Looking at the brief submitted by Professor Sheehy, I suggest some revisions. I would suggest:
Your committee is of the view that judicial education should include materials addressing discriminatory beliefs about men’s violence against women, wives and partners in intimate partner violence and on the unique circumstances of Indigenous women.
The Chair: That’s not what I have in front of me. Would you read it slowly? I don’t have the text in front of me, and I want to be sure that the transcript reflects what you’re proposing.
Senator Dyck: Yes.
Your committee is of the view that judicial education should include materials addressing discriminatory beliefs about men’s violence against women, wives and partners in intimate partner violence and on the unique circumstances of Indigenous women.
This comes from the last paragraph of Professor Sheehy’s brief.
The Chair: I will reread what I have been able to get. I’ll read it slowly so you can follow, Senator Dyck, and honourable senators can also follow:
Your committee is of the view that judicial education should include materials addressing discriminatory beliefs about men’s violence against women and intimate partner violence and on the unique circumstances of Indigenous women.
Is that exactly what you have?
Senator Dyck: I think I had, “women, wives and partners.”
The Chair: Could you reread it again so I can make sure my text is the same as yours? Reread the whole sentence, please.
Senator Dyck: Okay.
Your committee is of the view that judicial education should include materials addressing discriminatory beliefs about men’s violence against women, wives and partners in intimate partner violence —
The Chair: Just a second. That’s where we had something missing. Wives and partners and intimate partner violence. Okay.
Senator Dyck: “And on the unique circumstances of Indigenous women.”
The Chair: Do all honourable senators have the —
Senator Batters: I just had a comment. Does it continue?
The Chair: No. That’s the point.
[Translation]
Senator Dupuis: What we mean is that the committee considers that education on sexual assault and social context should include, in particular, what we have just said, as well as what Senator Dyck is proposing. In other words, we also want to see all sorts of other things. We are not saying that it should include this, we are saying that it should include many other topics, such as the “trauma informed framework,” the biology of trauma, and that we name them. We want to be broad enough in the wording of the observation to say that it includes this and, more particularly, that.
We want to make sure that the training provided today in 2019 takes into account not only the aspects that the Canadian Judicial Council believes should be included. We also want specialists, experts in the biological, psychological, psychiatric and sociological aspects of the issue, and therefore in the evolution of these issues, to be consulted and to contribute to the training.
So, the expression “should include” would be “devrait inclure, notamment” in French.
[English]
The Chair: Senator Dupuis is proposing, “Your committee is of the view that judicial education should include, in particular, materials addressing discriminatory beliefs” and so forth. In other words, she doesn’t want to restrict it essentially to that, but it should be included in the general education. That’s what Senator Dupuis is proposing.
Senator Dyck: I agree.
Senator Dalphond: That was the goal of my observation.
Senator Batters: While I certainly appreciate the comments Senator Dyck was making on this particular point and think that many of those things are valuable additions to this, I just worry a little bit that we might, in certain respects, perhaps, be getting a little bit beyond the scope of this bill. It is dealing with sexual assault law training, so if we try to incorporate too much of these other points, perhaps we might be getting a little bit beyond the scope of the bill.
When I was looking at Professor Sheehy’s paper, I thought the paragraph that you were referring to — the very last paragraph that she had in her paper — was more of an example but not necessarily determinative of that particular point.
Senator Dalphond: The observation I was proposing was to deal with sexual assault law and social context, including intimate partner violence. The aim was really that though the federally appointed judges are not front-line judges with respect to gender-based violence related to sexual offences — because it is mostly provincial judges who are on the front line — the federally appointed judges are on the front line in family cases, where you will find family violence and this gender-based violence, but based in terms of intimate partnership.
Since we’re dealing with this in the Divorce Act amendments in Bill C-78 and we have dealt with this in Bill C-75, the amendments to the Criminal Code that we completed last week, my observation was really to say it’s not only a matter of concern to provincially appointed judges, but also for federally appointed judges, not only dealing with criminal law but also dealing with family law issues.
Senator Lankin: I appreciate Senator Dalphond’s intent and support it. I think language that reflects what Senator Dyck is getting at could be included, following the words, “include intimate partner violence, gender-based violence,” and the exact wording you used in terms of the particular circumstances of Indigenous women, in a simpler approach.
I would suggest, like in our observation with Bill C-75, when we were clear on our intent around the table, we left it to the library analysts to draft the actual wording and combine the two thoughts. I think the intent is clear of what people want to accomplish here, and perhaps that could be done, Mr. Chair, and as was done with Bill C-75, it could be circulated to us and we can respond by email.
The Chair: I was going to propose more or less the same point as you to try to merge the objectives of Senator Dyck and Senator Dalphond’s texts. Take the text of Senator Dalphond, the one that I will identify, in his observation on Bill C-377/PJD. I would add the following to your reflection:
Your committee is of the view that judicial education in respect of matters related to sexual assault law and social context should include intimate partner violence, gender-based violence, the unique circumstances of Indigenous women, and the committee respectfully invites the Canadian Judicial Council to incorporate this in the design of its seminars.
It seems to me that, with that, we would address the specific concern of Senator Dyck and the proposal of Senator Dalphond. If you agree, honourable senators, that would tie the knot over all of this.
Senator Lankin: It’s always appropriate for any senator to speak to this, whether they’re a member of the committee or not.
The Chair: Of course.
Senator Lankin: I see an honourable senator in the room who’s looking uncomfortable, and I would invite her to make her comments. I don’t want to guess what that might be.
My only question would be: Does including reference to intimate partner violence and the amendments that you just read out in any way take away from the focus within the bill? Personally, I think not, because it’s an observation and it’s broader than, but I’d like to know if Senator Andreychuk has any particular concern with this.
The Chair: I can invite Senator Andreychuk to come to the table.
Senator Andreychuk: I’m not supposed to show my facial expressions, but apparently I did.
I want in our haste not to restrict sexual assault cases to the three areas that were put. There are young men being assaulted in many cases, and we’re forgetting them. If you want to highlight it, could you not use some words that say “in particular without restricting”? I don’t know what the actual words are. That’s not quite right. We’re hearing a lot about Indigenous women, and rightly so. We’re hearing a lot about family violence. But there are other areas yet to be explored, and one of them is to do with young people and how they’re being exploited. We’re not even hearing about it. In a plea for what is a growing area, I don’t think it’s just women who are sexually assaulted. If we can use some prefacing words and not just saying that it needs that.
The Chair: We could say, “shall include, among others.”
Senator Andreychuk: “Among other significant areas, we are highlighting at this time those three.” That would be my suggestion. Otherwise you would not be going to what this bill was supposed to do — sexual assault training, period. We’re saying in the bill that social context continues to change. That’s why you need training. I wouldn’t want it to be taken off into other areas.
The Chair: Absolutely. I think you made a very valid point, senator. I could share with honourable colleagues around the table a very recent case of assault on kids, who are not covered by partners and so forth, as other cases that this bill seeks to bring to the attention of the judiciary.
I would add “in particular, among other significant areas.” We are in observation here; we’re not amending the Criminal Code with this observation. We are explaining to people the preoccupation that we have, so we can be free in our prose.
Thank you, honourable senators, for those comment. I will reread it for the purpose of the minutes.
Your committee is of the view that judicial education in respect of matters related to sexual assault law and social context should include, in particular, among other significant areas, intimate partner violence, gender-based violence, and the unique circumstances of Indigenous women, and the committee respectfully invites the judicial council to incorporate this in the design of its seminars.
Is this agreed, honourable senators, as an observation?
Senator Pratte: As an editor, I would suggest we have a period somewhere.
The Chair: There will be a period. You have permitted me to do the technical, typographical “toilettage,” which is a new concept around this table.
Honourable senators, is it agreed that I report the bill, as amended, with those observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Honourable senators, thank you so much for your attendance tonight. I certainly want to commend our two special guests tonight, the Honourable Rona Ambrose and Senator Andreychuk, for the exercise. You were helpful up to the end of the work of this committee, and we appreciate your dedication to this important issue to Canadian society.
Honourable senators, I will be waiting for you Wednesday afternoon, at 2:30, for our consideration of Bill C-78, An Act to amend the Divorce Act and related acts, which is, of course, a significant issue in the context of what we’ve been doing in the last days and weeks.
Senator Lankin: Did you say 2:30?
The Chair: 2:30. I have been authorized on your behalf, and I received authorization from the Senate to sit Wednesday afternoon at 2:30.
Senator Lankin: In this room?
The Chair: No. It will be West 120.
(The committee adjourned.)