THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, March 17, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:30 p.m. [ET] to discuss Bill C-3, An Act to amend the Judges Act and the Criminal Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. I’m Mobina Jaffer, a senator from British Columbia, and I’m pleased to be the chair of this committee.
Today, we are conducting a virtual meeting of the Standing Senate Committee on Legal and Constitutional Affairs. Before we begin, I would like to give you some useful suggestions that we feel will help you have an effective and productive meeting.
If you encounter any technical challenges, particularly in relation to interpretation, please signal that to myself or to the clerk, and we will try to solve the problem. If you have any other technical issues, please contact the clerk directly.
[English]
Please note that we may need to suspend during these times as we need to ensure that all members are able to participate fully. I will do my best to get to everyone who wants to ask a question to witnesses, and in order to do so, I ask senators to try to keep their questions and preambles to questions brief.
Senators, I know that most members will have questions for our panellists, so I ask that you signal to the clerk through the Zoom chat only if you do not have a question. Otherwise, I will call all members for questions. If you are not a member of the committee, please signal to the clerk if you have a question, and I will try my best to accommodate you, but I do anticipate time being short.
[Translation]
Honourable senators, today we are continuing our study on Bill C-3, An Act to amend the Judges Act and the Criminal Code. As you know, we anticipate conducting the clause-by-clause consideration of this bill on March 25. I remind you that, if you have observations, you must send them in both official languages to the clerk before the meeting of March 25.
[English]
We are beginning today with the Minister of Justice for one hour, and then officials will stay afterwards. Senators, as we all know, we may have votes in the Senate Chamber, so we’re hoping that we can hear the minister and then, if there are votes in the chamber, we’ll go for the votes and then return. Justice officials have kindly agreed to return so that we can finish our work today. I would just note that we have officials staying for 60 minutes after the minister, so please keep technical questions for the officials.
Senators, we are now ready to welcome the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. He’s joined by Nathalie Drouin, Deputy Minister of Justice and Deputy Attorney General of Canada.
[Translation]
Mr. Minister, I would like to take a few minutes to introduce you to the committee members participating in today’s meeting: Senator Batters, deputy chair, Senator Campbell, deputy chair, Senator Boisvenu, the critic of the bill, Senator Boniface, Senator Carignan, Senator Dalphond, the sponsor of the bill, Senator Dupuis, Senator Keating, Senator Mégie, Senator Tannas, and Senator Pate.
[English]
Minister, you now have the floor. I want to thank you for joining us, and for waiting so long for us to get started. Thank you, minister.
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, Department of Justice Canada: Thank you very much, Madam Chair.
Good afternoon, senators. I’m very pleased to be here today to speak to you and to answer any questions that you may have regarding Bill C-3, An Act to amend the Judges Act and the Criminal Code.
The bill before you represents Parliament’s third attempt to have this important piece of legislation become part of the laws of Canada. Some honourable members will remember the important work undertaken by this committee in relation to Bill C-337. That bill started as a private member’s bill sponsored by the Honourable Rona Ambrose, who rallied universal support for the principles behind her bill. Survivors of sexual assault must be treated fairly, with dignity and respect, and sexual assault proceedings cannot be influenced or misguided by outdated myths or stereotypes. Bill C-337 received the unanimous support of the other place following a government-sponsored amendment to include social context education in the bill. This committee, taking into account a number of stakeholders’ concerns, in particular related to judicial independence, proposed practical amendments to address these concerns and strengthen the bill. Stakeholders and parliamentarians, including Ms. Ambrose, supported these amendments. Unfortunately, however, Bill C-337 did not pass before the 2019 election was called.
[Translation]
In February 2020, the government introduced Bill C-5, which largely replicated Bill C-337, including the amendments proposed by this committee. In September, I was pleased to introduce Bill C-3, the third and I hope final attempt, to have the important objectives of this legislation become law. Indeed, this bill was among the first to be introduced in this new session of Parliament, a fact that clearly demonstrates our government’s commitment to these objectives.
[English]
The ultimate purpose of Bill C-3 is to enhance public confidence, and, in particular, the confidence of survivors of sexual assault, that the criminal justice system will treat them fairly. It is to reassure survivors that when they come forward, they will be treated with dignity and respect by judges who have the knowledge, skills and sensitivity to correctly apply what is a very complex and nuanced area of the law. This objective has received the universal support of all parliamentarians in both chambers, in all of its legislative incarnations. I hope this represents the final stage of Parliament’s attempt to take what may appear to be a small step but is in reality a significant step in demonstrating our commitment to transform our justice system into one in which survivors of sexual assault are treated with the dignity they deserve.
The bill before you differs from Bill C-337 and Bill C-5 in an important respect. It specifies that social context includes systemic racism and systemic discrimination. The effects of the pandemic and the events of the last several months have highlighted the urgency of addressing the systemic inequalities that exist within our society, including those within our justice system. A meaningful discussion of the relevance of social context to our justice system must include systemic racism and systemic discrimination. In this regard, the Standing Committee on Justice and Human Rights proposed explicit recognition of this reality in Bill C-3, and our government wholeheartedly endorsed this recognition.
In 2018, the Canadian Judicial Council explicitly mandated that the judges’ professional development included awareness of the social context within which they perform their functions. Allow me to quote from the council’s professional development policies and guidelines, which can be found on the council’s website:
Judges must ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. This requires awareness and knowledge of the realities of individuals who appear in court, including an understanding of circumstances related to gender, race, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age, socio-economic background, children and family violence.
[Translation]
At the same time, the committee was conscious of the need to respect the fundamental constitutional principle of judicial independence. I take my responsibility as Minister of Justice to uphold judicial independence very seriously. Its importance cannot be overstated. Parliament’s efforts to bolster public confidence in our justice system cannot undermine this constitutionally-protected principle.
Judicial independence requires judicial control over judicial education. This control is necessary to ensure that judges are, and are perceived to be, impartial in their decision-making and free from arbitrary interference, in particular by the state.
To ensure that Parliament did not tread into unconstitutional waters, the Standing Committee on Justice and Human Rights proposed clarifications in relation to the role of the Canadian Judicial Council. These make it very clear that, ultimately, it is for the Council to determine how to implement Parliament’s will.
The Canadian Judicial Council is committed to excellent continuing education for judges, and this commitment is manifest in its Professional Development Policies and Guidelines. These policies and guidelines explicitly recognize that the public rightfully expects judges to be competent and knowledgeable in the law. Bill C-3 seeks to support and build on this notion and thereby move towards a more humane and inclusive justice system.
[English]
Through Bill C-3, Parliament is responding to critical concerns shared by Canadians. Yet, as judicial independence requires, the bill reserves the final say for the judiciary. The balance has not been disturbed by virtue of Parliament having signalled its priorities to the judiciary on behalf of Canadians.
I will now speak very briefly to each of the key elements of Bill C-3. First, to ensure new judges will participate in education on matters relating to sexual assault law and social context, this bill amends the Judges Act so that candidates are only eligible for appointment to a provincial superior court if they agree to participate in this fundamentally important education following their appointment.
Second, to help ensure that judicial education on sexual assault law reflects and respects the experiences and perspectives of survivors of sexual assault, the bill amends the Judges Act to clarify that the Canadian Judicial Council should develop such training after consultation with survivors or the groups that support them.
Third, the bill seeks to have the Canadian Judicial Council report annually to the minister on the delivery of judicial education on matters related to sexual assault law and social context. These annual reports, which would be tabled in Parliament, aim to enhance the public’s understanding and awareness of judicial education and should encourage judges to participate in continuing education on these crucial topics.
Finally, Bill C-3 amends the Criminal Code to require judges to provide reasons, in writing or in the record of proceedings, for their decisions in sexual assault matters. This is intended to help prevent the misapplication of sexual assault law. It is also intended to increase the transparency of sexual assault decisions, as written reasons and reasons entered into the record of a proceeding can be reviewed.
[Translation]
Taken together, the amendments that Bill C-3 proposes to the Judges Act and the Criminal Code seek to enhance the confidence of survivors, and broader public confidence, in the ability of our criminal justice system to hear sexual assault cases in a manner that is fair and respectful, treats survivors with dignity, and accords with the law that has been carefully developed to ensure this.
This bill sends a message to all Canadians, particularly survivors of sexual assault, that Parliament is committed and prepared to act to ensure a justice system that every Canadian can trust.
[English]
The NJI, the National Judicial Institute, provides judges meaningful training on a myriad of topics. I am sure you will hear from them when they come before you. The NJI’s In Review 2019-2020 provides information on their resources, including the Family Law Seminar which has been updated to include understanding the context of domestic violence in divorce legislation and seminars entitled “Building Cultural Competence” and “Sex, Gender Identity, Gender Expression, Sexual Orientation and the Work of the Superior Court.”
I urge you not to look at this bill as an opportunity to list every important topic on which a judge should receive training. The risk is too great that this bill, with such support, once again dies on the Order Paper.
I will conclude my remarks today where I began. When survivors of sexual assault interact with our criminal justice system, they must be treated fairly, with dignity and respect. They must not encounter harmful, outdated myths or stereotypes. I acknowledge that the challenges faced by survivors of sexual assault go well beyond the scope of this bill. In order to effect meaningful and sustainable changes to the manner in which survivors of sexual assault are treated by our criminal justice system, every actor in the justice system and every level of government must take its responsibility.
I urge all members to take this important step and vote to move Bill C-3 onto the next phase so that, on this third attempt, we can finally pass a bill that has received unanimous support in the house. Thank you.
The Chair: Thank you very much, minister. We also have with us Senator LaBoucane-Benson.
Minister, you have set a precedent where you provide us with the gender-based analysis. May I please ask if you would provide it on this bill as well?
Mr. Lametti: Yes, I will provide that, senator.
The Chair: Thank you. As we have a very short time span, I would really appreciate if we could get that soon. Thank you, minister.
We will now go to the sponsor of the bill, Senator Dalphond.
[Translation]
Senator Dalphond: So, I have a lot of questions, but I will start with two and will come back if any time remains in the second round.
Thank you very much for joining us today. Mr. Minister, in its report of June 5, 2019, our committee proposed many amendments to Bill C-337 which, in the form it had at the time, presented a number of difficulties with regard to judicial independence, which is an ever-present concern for the members of this Senate committee.
Could you explain why, in your opinion, the new bill now upholds the necessary judicial independence?
Mr. Lametti: Thank you, Senator. Of course, as a lawyer myself, I share your fears about judicial independence.
The committee proposed some helpful amendments in response to the concerns that the bill would infringe on the independence of the judiciary. As you perhaps recall, a number of participants and parliamentarians, including Rona Ambrose, applauded the work of your Senate committee in improving the bill.
We then included other amendments from the Canadian Judicial Council on the issue of judicial independence. Because of your amendments and those from the Canadian Judicial Council, I firmly believe that this bill protects judicial independence.
[English]
Senator Dalphond: Minister, you and other ministers who have appeared before this committee have always shown a great openness to Senate amendments and promised to give them due consideration. I thank you for that, and especially for those that were suggested by the Senate to Bill C-7. For Bill C-3, can you comment on what Senate amendments at this time could mean for the prospect of passing this bill? What are the challenges in terms of parliamentary timeliness and processes?
Mr. Lametti: Thank you, senator, for the question.
I have, I believe, in good faith demonstrated an openness to amendments on all the various bills that I have brought before the Senate, but I’ve also been honest with you, both in the last session and I will be now, when I felt that I might be less open to amendments.
Senator, I think the timing is such in the situation of a minority Parliament and a situation in which every minute in the House of Commons is negotiated amongst the parties that I believe that amendments this time around will endanger the bill itself and will possibly result in it dying on the Order Paper.
I think as a mark of good faith, we have incorporated the amendments this committee made last time to the bill. We took them seriously and we added them, and they are now part of the bill. When we re-introduced the bill, we immediately reintroduced the amendments that this group had proposed last time. Again, they were good amendments. They spoke to judicial independence.
I firmly believe we have a good bill. I firmly believe that in this case perfection will be the enemy of the good if we delay this bill with amendments any further.
Senator Dalphond: Thank you, minister.
[Translation]
Senator Boisvenu: Welcome, Mr. Minister.
First, I must thank you for introducing one of the rare bills in recent years to deal with assistance to the victims of criminal acts.
In your consultations, did you consult groups of victims of sexual assault? If so, how many victims of sexual assault were also victims of domestic violence?
Mr. Lametti: Thank you for the question, senator. The bill comes from a private member’s bill introduced by Rona Ambrose, who was a member of the House of Commons at the time. I know that, on two occasions, House of Commons committees and Senate committees heard testimony from victims of sexual assault. So I can give you the figures later.
Senator Boisvenu: Okay. I would like to understand your fear that this bill, if it is amended, will die on the Order Paper. Do visions of an election dance in your head? I’m trying to understand your fear, your reason for not potentially amending this bill.
Mr. Lametti: There are no visions of an election, senator. It is more the fact that, in the House of Commons, one party in particular is using delaying tactics at every stage of the process. It is therefore very difficult to amend bills.
Senator Boisvenu: Mr. Minister, this bill is Conservative in origin, so I do not believe that the party you refer to will be throwing any spanners in the works.
I want to share with you some statistics that demonstrate that something in this bill must be amended. Currently, in courtrooms, 57% of the cases have to do with spousal violence, of which 33%, almost 1/3, are also linked to criminal acts of sexual assault. So twice as many cases are related to spousal violence than to sexual assault. That does not mean that one is more or less important than the other. However, it does mean that, in Canada, there is some urgency in acting on spousal violence.
Do you not believe that this would be the ideal occasion to bring those two factors together in the bill: sexual assault and spousal violence? Often, they are common elements in the cases being tried in court.
Mr. Lametti: Thank you, senator, I share your point of view. As you know, the Divorce Act has just come into force. I would also like to point out that, during my introductory remarks, you heard me define social context. In that definition, family violence was included as a part of the social context. I would say that it is already part of the work we are doing with the concept of social context.
Senator Boisvenu: Mr. Minister, that is the great weakness of the Criminal Code and of judicial training: spousal and family violence is scattered everywhere throughout the Criminal Code. No chapter focuses on family violence, as is the case for sexual assault.
In my view, it is urgent to act in Canada, because family violence right now has all but exploded, especially since the pandemic began. Is this not an important message that your government can send to women, given that most of the victims of spousal violence and sexual assault are women?
Is this not the ideal time for your government to tell victims of sexual assault and spousal violence that you have heard them and that you are going to train judges accordingly?
Mr. Lametti: In terms of training, senator, we are working with the Canadian Judicial Council and the National Judicial Institute. As I have just said, as a government, we have taken concrete steps, such as the Divorce Act, precisely to emphasize the importance of understanding the impact of spousal violence. The social context is a key concept and we are stressing its importance at every stage. This is very important for our government.
[English]
Senator Batters: Minister, I have supported this judicial training bill since it was first introduced by former Conservative leader Rona Ambrose.
It’s my understanding that social context was first added into Rona Ambrose’s Bill C-337 when it was studied by the House of Commons Standing Committee on the Status of Women. When your government introduced Bill C-3, it included social context in educational programming, but it was only at the last moment during clause-by-clause consideration of Bill C-3 at the House of Commons Justice Committee that Liberal MP Greg Fergus brought forward amendments to add systemic racism and systemic discrimination to social context.
Minister, Greg Fergus is not a backbench Liberal MP. He is a parliamentary secretary, and as such what he does reflects on what your government wants him to do. If your government thought systemic racism and discrimination needed to be included in this judges training bill, why didn’t you include it when you introduced this bill after the 2019 election or when you reintroduced this bill again after your government prorogued Parliament?
Mr. Lametti: Thank you, senator, for your question and your support of this bill all the way through. Like you, I have supported Rona Ambrose’s initiative in this regard from the start, and I think I have been useful. Remember that it did start as a private member’s bill, so there has been an evolution and things have been added along the way to make it better. I think that is true of both the notion of social context and in understanding social context as including systemic racism and systemic discrimination.
As a minister and as a government, I think we won’t turn good ideas away when they will help the bill. They have helped the bill. We will continue as a society to better our understanding of all of these various issues and continue to evolve and pass legislation that reflects this. The process that this bill has gone through reflects precisely that.
Senator Batters: Minister, let’s remember that it was a private member’s bill once but it’s been a government bill twice, and it was only at the last moment in the House of Commons committee this last time that it was added. There were other opportunities to change that, but I’ll leave that part of it.
Minister, since we’re discussing judges today, I want to briefly ask you about the current status of judicial vacancies. I see that there are currently 43 judicial vacancies — a high number that’s remained relatively constant for as long as the Trudeau government has been in power, five and a half years. Your predecessor, Jody Wilson-Raybould, revamped the judicial advisory council system, but that process was completed years ago. Why do you consistently have judicial vacancies that range between 40 and 60 federally appointed judges? This is solely within your control and has a significant impact on court delays. Minister, what is taking so long these many years later?
Mr. Lametti: Thank you, senator, for the question.
I think we put in place a very good judicial appointment process that is transparent and that very much reflects the needs of courts. There are some vacancies, and we fill them routinely and diligently. I don’t have the actual numbers in front of me, but I fulfill my mandate of appointing a very high quality bench. Often, delays are caused by the expiry of the mandates of judicial advisory committees. We then recompose them, and they begin their work again. So there are ways, but we will be making more appointments in the coming weeks to fill those positions, and we’ll make more appointments as judges retire and courts have a need. We are filling those spaces quite diligently. I think the Superior Courts, the Federal Court, the chief justices and the courts of appeal, as well as the bars across Canada are very happy with the quality and pace of our appointments.
Senator Pate: Thank you, minister, for joining us.
Minister, as you know, the cases that gave rise to this legislation only came to light because of the diligent sleuthing and reporting of survivors and their supporters. Many of those same individuals have described this version of the bill as essentially gutted, in particular because of the decision not to require written decisions. When we’re talking about a decision that is recorded only, where no written reasons are provided, could you please clarify how, with this bill, members of the public, journalists and researchers concerned about whether judges are misapplying the law of sexual assault would be able to access and review these kinds of decisions? And wouldn’t the same barriers to public exposure of judges misapplying the law we see today continue with this bill as a result of that?
Mr. Lametti: Thank you, senator, for the question.
As someone who has written on the reasons for decision, although in the administrative law context, I understand the importance of having written reasons. Indeed, in this bill, we have added changes to the Criminal Code such that the final determination has to be given in written reasons. It was the case previously — and my officials will give you a more technical answer in the second hour — that only parts of the decisions or determinations that might be made in the process of hearing a sexual assault case had to be reduced to writing, but we have added in this case the final determination, so we will be able to better assess the reasons that a judge gives for arriving at a particular result. I think that helps transparency and will help anyone assessing the body of jurisprudence that comes out of this in order to be able to ensure that, first, the decisions were correct and, second, the process is transparent such that it can continue to be improved upon down the road.
Senator Pate: Thank you very much for that. My understanding — and please point me to the appropriate place if I’ve missed it, and I apologize in advance if I have — and my read of this is that the legislation only requires written reasons where proceedings are not recorded. If I’ve missed that, please do point it out for me and correct me. Thank you very much.
Mr. Lametti: That’s correct, but in either case you either have the recording or you have the written reasons. So you’ve got a written transcript of the proceedings in both cases.
Senator Pate: The challenge is for survivors to get access to that. As you know, it’s a rather arduous process. The previous iteration of this bill actually included the requirement for reasons to be rendered in writing so that they would be more accessible to survivors.
Mr. Lametti: We feel that we’ve gotten the balance right here. There’s also the balance with the independence of the judiciary, but we feel we’ve gotten the balance right to get the reasons out, whether through the judicial proceedings or the requirement to put the reasons down on paper.
Senator Pate: Okay. So you would disagree with the advocates and the academics who have written about this that, in fact, this bill is essentially gutted because of that provision?
Mr. Lametti: Yes, I would definitely disagree with the view that we’ve gutted anything.
Senator Pate: Okay. Thank you.
Senator Boniface: Thank you very much, minister, for being here.
In the preamble of Bill C-3, it states that “survivors of sexual assault in Canada must have faith in the criminal justice system.” I think we would all certainly agree with that. Are you content that the provisions found in this bill accomplish that? What other steps is your government taking to ensure that? Finally, how would you measure it? I’ll roll those in together and ask for you to speak to them.
Mr. Lametti: Thank you.
I think it does that. The bill puts us in a better place with respect to enshrining the principle of better training our judges with respect to sexual assault and social context. It also reinforces a positive working relationship that we have to have with the judiciary. Remember, there is the principle of judicial independence. By setting out our principles, we’re sending a clear message to the Canadian Judicial Council and the National Judicial Institute about the kinds of things that we think judges need to be trained on. Obviously, they take it seriously. There is an evolving positive relationship there, which I think is actually the best assurance, Senator Boniface, moving forward that we will continue to monitor and improve the quality of our judicial decisions and the quality with which judges respond to sensitive cases like sexual assault moving forward.
Senator Boniface: Thank you. Those are all of my questions.
[Translation]
Senator Carignan: My question is about the same topic as Senator Pate’s. Ms. Ambrose’s private member’s bill required the decision to be recorded in writing. The current bill does not require the decision to be recorded in writing; it simply requires that the reasons be entered in the record. In 1990, you wrote an article in the Canadian Journal of Administrative Law and Practice in which you dealt with the reasons justifying an administrative decision in writing. In 1999, you were quoted by the Supreme Court in Baker. At the time, you wrote:
[English]
Decisions would be better if reasons, sufficiently written, are provided. Errors and consistency and carelessness will be recognized and eliminated in the process of conscientiously shaping a written opinion.
[Translation]
You continue to emphasize the importance of a decision justified in writing. You seem to have changed your mind since you became minister. Why are you now saying that it would not be justified to require a written decision, especially since those noted on the record will not be reported in the newspapers that cover court decisions?
Mr. Lametti: Thank you, senator, first of all for quoting from an article that I had written with the late Rod McDonald, which was cited not only in the Baker case, but several times by the Supreme Court, most recently in the Vavilov case. I am very proud of the article and the arguments in it, and no, I have not changed my mind. We are dealing with a reality, which is the independence of the judiciary and the tradition of independence, and the decision to give reasons for decisions in writing or not. My article was in the context of administrative law, so the context was different.
That said, we made sure in the bill that there would be a written record of the decision — either reasons written by the judge, which is desirable, or the record. Already, this is an improvement that also respects the independence of the judiciary.
Senator Carignan: You make a distinction with administrative law, but human rights are much more affected when it comes to criminal law. So, in terms of the rationale for the requirement to provide written reasons for decisions, if you put it on a continuum of clearer obligations, the more you go to criminal law, the more you infringe on people’s rights and freedom, the more the expectations of procedural fairness and impartial judgments increase. If in administrative decisions, you feel that there should be written reasons for decisions, that is even more necessary in criminal law, is it not?
Mr. Lametti: As I mentioned, senator, my principles have not changed, but there is a reality to consider, which is judicial independence. We are balancing, as a government, our concern for the training of the judiciary in sexual assault, in the social context. We are doing that. So the bill is a marked improvement in this case. Clearly, it is desirable, even within the framework of the law, that sexual assault decisions be justified in writing by the judge. So we’re moving forward, I hope, with a bill that will improve the plight of victims and the treatment of victims in the courts.
Senator Carignan: Thank you.
Senator Dupuis: Thank you, minister, for being with us today. I have two specific questions for you.
The first one is about the use of “should” and “shall submit” in English. The requirement to submit a report — “shall submit” — and the requirement that the training offered to judges include a mandatory number of topics was removed and replaced in English with “should.”
In French, it was left as an obligation: “doit présenter” and “doit comporter.” Could you explain to me why you made this choice?
Mr. Lametti: The motivation is the same as for other answers I have given. We had to respect the independence of the judiciary, so we communicated, through legislation, that it is desirable to file a report every year.
However, the final decision rests with the Canadian Judicial Council. Why is this so? Because even maintaining and publishing statistics for judges who have already been appointed, according to most experts, is a matter of judicial independence.
They have just clearly communicated that this is desirable and that they would like to have the numbers, but judicial independence must be respected to maintain the quality and confidence of the general public in the judiciary.
Senator Dupuis: Thank you, Minister. I did understand your explanation.
Why does French seem to indicate an obligation, when English has clearly changed from “shall” to “should?” One “should” present a report, one “must” not present a report. In other words, we retain the obligation to do a number of things in French, whereas in English we have moved squarely from “shall” to “should.”
I guess this could be corrected; it should read “should report.” I understand very well the principle of judicial independence. I would just like to see it applied consistently, both in French and in English.
Mr. Lametti: In my notes, it said “devrait” in French. Thank you for letting me know about the correction. We can obviously make sure this is the case everywhere.
Senator Dupuis: Here’s my other question: A clarification is added to the social context, which includes racism and systemic discrimination. That appears in two places in the bill, so it’s the same formula.
My question for you is: What is the difference between racism and systemic discrimination? Systemic discrimination is a legal concept that is very well defined. Since 1987, the Supreme Court has had the opportunity to rule on the subject several times. What is the difference between the two? Is there one?
Why are we introducing this concept as if it were a different reality? Here, we are talking about judges who will apply a law or enforce basic rights, whether they are rights provided for in the Charter or in federal law. I would like to understand that distinction.
Mr. Lametti: Thank you for the question, Senator. These are related concepts, but they are not exactly the same thing. In a document that is entitled Building a Foundation for Change: Canada’s Anti-Racism Strategy 2019-2022, there is a definition of systemic racism:
Includes patterns of behaviour, policies, or practices that are part of the social or administrative structures of an organization and which create or perpetuate a position of relative disadvantage for racialized persons. These appear neutral on the surface, but nevertheless have an exclusionary impact on racialized people.
As for systemic discrimination, this is a generalized but often subtle form of discrimination that can take various forms: differentiation, exclusion, or restriction based on specific identity factors. Examples are given. Systemic discrimination is often an amalgam of voluntary and involuntary acts that affect a specific population more severely. Thus, the two concepts are related.
As stated in the definition I just gave of racism, there is more structure in the patterns of behaviour or practices — more social structures. The two concepts are related, and both are included in the bill to ensure that it is comprehensive and that we cover the topic.
Senator Dupuis: Minister, your definition of systemic racism is exactly the same as the definition of systemic discrimination, which is anything that involves practices, policies —
[English]
The Chair: I’m sorry, Senator Dupuis. Senator Mégie, please.
[Translation]
Senator Mégie: Good afternoon, Minister. Thank you for being with us. I have two brief questions for you.
Besides the United Kingdom, are there any other countries that have this requirement for judges, or that provide this training for judges?
Here is my second question: To your knowledge, how many judges or judge candidates have already expressed, voluntarily, their intention to go for this training?
Mr. Lametti: In response to your question, senator, I would like to acknowledge the work of the National Judicial Institute, which is truly a leader in the education and training of judges internationally. Several judges have already received such training in Canada through the institute.
As I said earlier, I don’t have the numbers in front of me, but the judiciary has that information.
However, other jurisdictions, including the National Judicial Institute here in Canada, are involved in the education of judges internationally.
Senator Mégie: Thank you.
[English]
The Chair: Minister, I have two very quick questions for you. I’m extremely unhappy with this bill because I think it’s a slippery slope to independence of judges. First we started with sexual assault and then we have systemic racism, then systemic discrimination and then social context.
I want to hear from you. You are the highest official of the government when it comes to these issues. Do you not see a slippery slope here? Another minister might add some other things to this bill.
Mr. Lametti: Thank you for the question, Madam Chair.
No, not at all. I’m skeptical of slippery slope arguments generally — I was as an academic and I still am now — but in particular this one.
We recognize the importance of better training because of the complexity and nuance involved and the real desire to treat victims of sexual assault with respect and dignity. The same is true of social context in things like family violence, and systemic discrimination. These are very important, and it is important that judges be able to examine their own biases or debunk the myths that they may have been exposed to up until and including their appointment on the bench. So these are critically important.
I don’t think there is a slippery slope here, and the ongoing principle of the independence of the judiciary will be as a counterbalancing point to make sure that we don’t go down any slopes and that judges are sensitive to the mission that Canadian society has entrusted to them.
The Chair: Minister, I’m happy that you think that the chief judges across the country are happy with the way you’re making appointments and the pace. That’s not what I’m hearing. When we speak about training, they’re saying, “We’ll send them to all kinds of training. Give us the judges.” I leave that with you, because I’m worried we will be late for the vote. I’m leaving that message to you, that you can do as much training as you want, but you need judges on the bench. Of course, with COVID, the situation in the courts is just terrible, but that’s a conversation for another day.
Minister, I want to thank you for being here. You always are very accommodating to our requests, and on behalf of the committee, I want to thank you. Thank you, minister.
The officials will be returning after the vote.
Mr. Lametti: Thank you.
(The committee suspended.)
(The committee resumed.)
The Chair: Senators, we now welcome our second panel. I want to thank the Justice officials for accommodating us and returning after our vote. The officials are Toby Hoffmann, Acting Director and General Counsel, Judicial Affairs Section; Melissa Moor, Counsel, Judicial Affairs Section; and Gillian Blackell, Senior Counsel and Team Lead, Criminal Law Policy Section.
Mr. Hoffmann, I’ll ask you to start.
Toby Hoffmann, Acting Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: Good afternoon, senator.
The Chair: Do you have a presentation, or will we just ask questions?
Mr. Hoffmann: Senator, you can proceed with your questions. Thank you.
The Chair: Thank you.
[Translation]
Senator Dalphond: Senator Dupuis asked a question and I would ask for clarification from department officials. I think she was referring to the bill at second reading and not at third reading as passed by the House of Commons. Can you confirm to those listening and to the members of the committee that subsection 62.1(1), as passed in the House of Commons, does read, “Within 60 days after the end of each calendar year, the Council should submit . . . a report . . . .”
And that at the end of the sentence it reads, “The report should include . . . “ (a) and (b)?
Mr. Hoffmann: Thank you for the question, senator.
[English]
We did look at the version of the bill, and I believe we have confirmed that —
[Translation]
— in French: “Dans les 60 jours suivant la fin de chaque année civile, le conseil devrait présenter . . . “
Senator Dalphond: Thank you, that answers the question. The clarification has been made. Thank you.
Mr. Hoffmann: Thank you, senator.
Senator Boisvenu: I too wish to welcome the officials from the Justice Department.
I have a few questions. The first is, have you consulted with the provinces on this bill?
[English]
Mr. Hoffmann: Thank you, senator. I will ask my colleagues, Ms. Moor and Ms. Blackell, to speak to that.
[Translation]
Gillian Blackell, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: As the minister has pointed out, the bill follows up on a private member’s bill. So the process is slightly different. In the forums with the provinces and territories, we pointed out the existence of the private member’s bill before, and subsequently Bill C-5 and Bill C-3, and according to —
Senator Boisvenu: What I understand is that there has been no specific consultation on this bill. What will be the consequences for new judges who fail to meet the commitment to take this training?
[English]
Mr. Hoffmann: Thank you for this second question. As I understand the bill, that requirement is mandatory. Before acceptance of a judicial position, there would have to be an agreement to take the training, as I understand it. I’ll ask my colleague Ms. Moor to add anything in that regard. Thank you, senator.
[Translation]
Senator Boisvenu: Before beginning, can Ms. Moor at the same time tell me how Bill C-3 will affect sitting judges? The aspiring judges have that obligation, but will the sitting judges be required to take the training?
[English]
Melissa Moor, Counsel, Judicial Affairs Section, Department of Justice Canada: Thank you for your questions.
I’ll begin with the first point to build on what Mr. Hoffmann said. The bill would make it a requirement or a condition of eligibility for persons seeking appointment to a superior court of a province to undertake to participate in this training once they’ve been appointed.
On your second question, the bill does not apply to sitting judges. It applies to candidates or to persons seeking an appointment. Chief justices of the various courts take care of the education of their sitting judges.
[Translation]
Senator Boisvenu: Very well. So, the training cycle for all judges will take several years. Do I understand this correctly?
[English]
Mr. Hoffmann: As the minister pointed out, the training is the responsibility of the Canadian Judicial Council and the National Judicial Institute. There has been training for sitting judges, and I believe, senator, that was your second question — what about sitting judges? That training has occurred and has been going on for a number of years. The NJI, as we understand it —
[Translation]
Senator Boisvenu: What I understand is that the training that has been given for several years . . . The law says that the training must be given by stakeholders who work with victims of sexual assault. Has the training that judges have received over the last several years been done by victims’ groups as will be required by the bill?
[English]
Mr. Hoffmann: Thank you, senator. Admittedly, I can’t speak to the specifics of the courses that CJC and NJI would collaboratively provide.
[Translation]
Senator Boisvenu: I can put the question to the Canadian Judicial Council tomorrow.
[English]
Ms. Blackell: I am aware of training that Justice Canada has funded on sexual assault through the NJI, in which stakeholders that work with sexual assault survivors were involved in developing the program. But the programs are always judge-led, and that’s consistent with this bill.
Senator Boniface: Thank you for being here. I apologize for coming in a bit late; I was having trouble with my computer. If this has been asked, I apologize.
The Canadian Justice Review Board suggested that the amendments made at the House committee changing the word “shall” to “should” in sections 60 and 62 detract from the preamble statement that survivors of sexual violence must have faith in the criminal justice system and that there is now some inconsistency between intention and actual wording. Can you tell me how and if that’s been addressed?
Mr. Hoffmann: Senator Boniface, thank you for your question.
I believe the minister responded to that saying that it has been addressed in the bill. The minister also raised the point about this bill is trying to strike a balance, instilling confidence in the justice system through judicial training yet preserving the sacrosanct principle of judicial independence. I’ll leave the response at that, senator.
Senator Boniface: Thank you.
[Translation]
Senator Dupuis: Thank you for the clarification regarding “devrait” in the French version.
I put this question earlier to the minister, but I would like to know your vision. What distinction do you make between systemic racism and systemic discrimination, and why is it that we are including both here, when systemic discrimination is a well-defined concept? This is not necessarily the case with systemic racism. Thank you.
[English]
Mr. Hoffmann: Thank you for the question, senator.
I will say that the minister, in my opinion, responded to that question by saying that the issues are indeed related and it has been determined that there is a need to include both in the bill.
[Translation]
Senator Dupuis: I am sorry, but that was not my question. I did hear the minister’s response.
You are legal experts and I want to know what the difference is, according to the Department of Justice, between the legal concept of systemic discrimination and what is called systemic racism? Thank you.
[English]
Mr. Hoffmann: Thank you again for the question.
Systemic racism is just an understanding and acknowledgement that, through judicial training, judges are alive and attentive to issues in the justice system regarding different litigants, regarding different individuals that may not be, if I can say, visible or stated in law, but who are affected by the way certain systems have operated and continue to operate. Again, I would reference what the minister said. I think both of the systems are intertwined. Both of the issues are intertwined. Both of the concepts are intertwined. As the minister has said, the administrative structures of an organization are indeed something that we, as Canadians, expect judges to be cognizant of when they’re adjudicating issues such as sexual assault.
[Translation]
Ms. Blackell: It should also be said that this was an amendment that was made as part of the committee process; it was not part of the original bill. So, we can’t really talk about the specific intent of that amendment.
On the other hand, I would like to point out that systemic racism is part of systemic discrimination, but the concept of systemic discrimination is broader; it includes discrimination based on other factors such as ability, disability, or other forms of discrimination. It’s a broader concept and I think the point was also to focus on the issue of racism in particular. Thank you.
[Technical difficulty]
Senator Mégie: When I heard the answer given to Senator Dupuis’ question, I was a little hesitant to ask my question, as I wanted to reserve it for tomorrow.
However, I will ask it anyway. Since the racial discrimination part was included under social issues, personally, when I first read it, I saw “sexual assault” and thought, “oh, we’ll talk about racial discrimination incidentally.”
Finally, when I listened, I understood that we made an amendment, so that’s fine.
If this is brought in as an amendment, in the courses that are offered to judges, are you going to focus on sexual assault first and then, if they are interested, offer a course on how to work with people who are discriminated against? That was my question. Was it clear?
Mr. Hoffmann: Yes, senator, and thank you.
[English]
I think what I’d say is one of the foundational pillars of the bill, as the minister spoke to, is the fact that there’s a recognition that the decisions regarding training are within the purview of the Canadian Judicial Council and its relationship with NJI. I don’t think we can necessarily speak to how training will be delivered or what the requirements will be other than to say that the bill makes clear in the preamble that training should be given, and the manner in which it should be given is within the purview of those organizations, as the minister said, for the purpose of ensuring that we protect judicial independence.
[Translation]
Senator Mégie: Fine, thank you.
[English]
The Chair: I have a question for you all. May I ask you to please turn to “seminars related to sexual assault law,” please? I think it’s section 3.
In section 3(a), it says that the courses will get:
. . . developed after consultation with persons, groups or organizations the Council considers appropriate, such as sexual assault survivors and persons, groups and organizations that support them, including Indigenous leaders and representatives of Indigenous communities . . .
I’m a little confused by that. We’ve added systemic racism, and we are not including racialized or Black communities in consultations. Can you please clarify? Is that an error, or am I missing something somewhere?
Mr. Hoffmann: Thank you, senator.
In terms of a clarification, I think the spirit of the bill, as we’ve looked at in the preamble, is to ensure that training is provided that instills confidence in the justice system. I would say that really is the jumping-off point.
In terms of consultations that the judiciary may decide to pursue, I don’t want to speculate, but I would have to assume that they would most likely see those consultations as being necessary as well.
I would also say that I don’t think they are mutually exclusive, in the sense that many of these groups could suffer from one or more enumerated heads of discrimination, whether it be an Indigenous person or a person of colour.
The Chair: But, with the greatest of respect, Mr. Hoffmann, persons of colour are not mentioned here. In section 3, it doesn’t say, “may;” it says “should.” Anyway, I made my point. I made my point that it’s not covering one group of people.
Senator Dalphond: My questions are for those who were involved in the drafting.
First a comment: On the section we were just looking at, “The Council should ensure that seminars . . .” And it goes on “. . after consultation with persons, groups or organizations the Council considers appropriate, such as . . .” So it’s not a limited list. It really says we invite you to do consultation, and we invite you to include the following groups, but this is not limited to that, I guess.
My question is really about the amendment to the Criminal Code about the reasons for judgment. The minister has explained that that covers some topics that were not previously covered necessarily by the judgment of the Supreme Court in, I think, R. v. Sheppard, where it was said that a judge has the obligation to provide reasons for judgment in order for the accused, the victims, the public, and, if there’s an appeal, for the Court of Appeal to understand the reasoning behind the judgment. The list is clear of all the types of situations where reasons have to be provided.
Then there was a question, I think by Senator Carignan, about record of reasons. It’s subparagraph (3) of the new section 278.98. It says:
The reasons shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.
I don’t know who drafted that, but if one of you is involved in the drafting, maybe you could explain to my colleagues how it works in the court. Either the judgment is delivered from the bench or it’s taken under advisement. If it’s taken under advisement, either it’s delivered again from the bench later on or it is provided in writing to the parties. But what is the record? I guess if a judge renders judgment orally in the courtroom, this is recorded automatically or by a stenographer, all of that, and this is what is part of the record. But maybe the person who drafted that section could explain.
Ms. Blackell: Thank you so much for the question.
The additional inclusion of the reference to reasons that are entered into the record of the proceedings was following the hearings at the Standing Committee on the Status of Women and the House committee for Bill C-337. There are two main reasons for this.
The first is that requiring written reasons could cause additional delays in the criminal justice system, which could result in violations of the right of an accused to be tried within a reasonable time — 11(b) of the Charter rights. This is particularly concerning since the 2016 Supreme Court of Canada decision in R. v. Jordan, which placed presumptive ceilings on the time limit it would take for a case to proceed before the courts, and that is specifically 18 months before provincial courts or 30 months before a superior court or a provincial court where it’s involving a preliminary inquiry. Beyond that time, charges will be stayed unless the Crown can demonstrate exceptional circumstances. So there is a real risk that requiring written reasons for all of these decisions could delay the process.
There’s another reason why this change was made at the Standing Committee on the Status of Women, and that was that it is beyond the parliamentary legislative authority to impose financial obligations on the courts of criminal jurisdiction, as these fall within the provincial head of power, section 91.27 of the Constitution Act.
The courts can provide written reasons or they’re entered on the record of the proceedings which, as you mentioned, Senator Dalphond, are recorded and there are transcripts that could be made available. At that point, either the transcripts are provided automatically by the court or they are requested. Some courts do this and provide this automatically to the parties. I think there’s certainly a concern when it’s a survivor, because they’re not a party to the offence, or if it’s someone who is actually observing the proceedings, if they’re not in court and able to hear the oral presentation, which is certainly part of the whole presumption of open court principle. The reasons are available orally but, as we know, we can’t always be there, so there’s a possibility of requesting transcripts. Some courts use private companies for this, and that does require certain fees. Those fees vary. Unfortunately, at the federal level, to require them to incur these fees is problematic from a constitutional perspective. Clearly, we would encourage them, and a lot of courts are submitting their reasons to CanLII, which is a national, free, online repository of over 1 million decisions of courts and tribunals across the country. That is more and more common as well.
I believe that answers the second part of your question.
Your first part was about the provision itself for reasons, and is that a form of codification of the common law in R. v. Sheppard 2002 decision of the Supreme Court. Certainly that decision speaks to the importance of providing reasons, the fact that judges need to provide reasons, particularly to allow for meaningful appellate review of convictions and acquittals. It is also partially covered already for sentencing decisions by section 726.2 of the Criminal Code, which requires judges to provide reasons in the record for their sentencing decisions and the terms of those decisions. The proposed section 278.98 of the Criminal Code would expand that and have it specifically relate to sexual assault provisions and have it specifically placed in Part VII of the Criminal Code, with all of the other sexual assault provisions, because of the importance of bringing this to the attention of judges, along with all of the other provisions that are specific to these very complex areas of the law. It certainly has a significant value added in that regard.
I hope that answers your question.
Senator Dalphond: Yes, thank you.
Senator Pate: Thank you to the witness.
My first question comes from Senator Boyer. Numerous studies have demonstrated that pets can be used to silence victims of domestic violence and sexual assault. These studies also show that animal abuse is associated with an increased risk of severe intimate partner abuse and that many victims delay leaving their partners due to concerns for their pet’s safety. This is even more true in the case of Indigenous women who often have a deep spiritual connection with their animals. Her question is: Has your department done any research in regard to this important link, and do you think that information about the link between animal abuse and domestic violence/sexual assault should be included in the training judicial candidates must undergo before their appointment?
My question is actually linked to that but a bit more expansive. Ms. Blackell, you’ve already indicated that you’ve testified before the Standing Committee on the Status of Women on some of these issues. I’m interested in which organizations or groups of survivors were consulted or will be consulted in the development of both this version of the bill as well as the judicial education being provided. Thank you.
Ms. Blackell: I can certainly answer the second part, which is in relation to the organizations representing survivors of sexual assault. I think the minister did partially respond to that earlier, speaking to groups that have gone before committee hearings, and we will endeavour to pull together a listing of all those organizations for this committee following our appearance because we unfortunately don’t have them handy.
I could also speak to the question that you had raised earlier about whether the department has done any research in respect of the role of violence against pets in the context of intimate partner violence and sexual assault. It’s something that we’re aware of and certainly alive to, and it is something that is of concern. A number of organizations, I believe, have raised this issue from the perspective of funding through the Victims Fund for projects in that area.
In terms of the impact on possible training for the judiciary, I will leave that question to Toby.
And it’s lovely to see you, Senator Pate.
Senator Pate: You too.
Mr. Hoffmann: Thank you, Senator Pate.
Admittedly, in terms of training, I would go back to the fact that the requirements for training are not mandatory in the sense of the Canadian Judicial Council in conjunction with NJI deciding what is appropriate in terms of protection of judicial independence. There is, as you’ve heard, a requirement for consultation, but I think those questions are probably best answered by them, respectfully, in terms of whether or not that would be an element of training that would be provided. I would say, although I can’t speak comprehensively, that perhaps it already has been.
Senator Pate: Thank you very much.
The Chair: Mr. Hoffmann, Ms. Moor and Ms. Blackell, thank you very much. We certainly appreciated your being here and also very much appreciated your waiting for us to come back. Thank you very much.
Senators, we meet tomorrow morning at 10:30.
(The committee adjourned.)