THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, April 1, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met by videoconference this day at 10:30 a.m. [ET] to study Bill C-3, An Act to amend the Judges Act and the Criminal Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: I welcome you to our meeting for clause by clause on Bill C-3, An Act to amend the Judges Act and the Criminal Code.
Yesterday we had some sound issues with witnesses, and I want to start by addressing that issue with you. Senators, I know that you were very concerned about the sound issues, and I was as well. I want to give you a little bit of background.
Our clerk works very hard with the witnesses before they come. We also offer to buy witnesses a mic if they do not have one. We make sure that the witnesses have a mic, and we go so far as to offer to purchase a mic if the witnesses do not have a mic. We know the importance of the headset, otherwise we cannot get interpretation. This is also brought to the witnesses’ attention.
The meeting is also open an hour in advance to allow onboarding. Unfortunately, all of the witnesses who arrived at the second panel arrived just on time, and they were not able to be onboarded. As I told you, the Senate will also reimburse any witnesses who had to purchase a headset. The clerk will review all the documents sent to the witnesses to make sure that proper emphasis is placed so all witnesses have the best opportunity to be prepared.
Honourable senators, I am aware that you were very concerned, as was I, that we were not able to hear one of the witnesses. Are there any other concerns that I can answer at this point?
[Translation]
Senator Boisvenu: Thank you for that very important clarification. Conducting sound tests five minutes before the meeting begins seems risky to me. Yesterday, two or three witnesses did not have the right equipment. We should be doing the tests 24 hours ahead of time. We have the technical staff for that. We invite witnesses and we take a few weeks to prepare them; in many cases, we also have to convince them to appear. It’s regrettable when they can’t participate because of a technical problem that occurs five minutes before the beginning of the meeting. It’s frustrating for them, and it’s frustrating for us.
I suggest doing the sound tests a few days ahead of time.
[English]
The Chair: Senator Boisvenu, I know your concerns are the concerns of every member of the committee. It was really hard to tell a witness we couldn’t hear from her. I found it very hard last night having to say no to her. We have offered that she can send her remarks in writing so we can all read them, but that’s not the best because we were not able to ask her questions.
I will ask the clerk to consult whomever he needs to find out the feasibility of doing a sound check 24 hours ahead. I will also ask the clerk if he wants to respond to any of the concerns that have been raised.
Mark Palmer, Clerk of the Committee: I have no comment, Senator Jaffer.
The Chair: Thank you for your suggestion, Senator Boisvenu. I am taking it up with ISD.
[Translation]
Before we proceed with clause-by-clause consideration, I have a few reminders for senators. If, at any point, a senator is not sure where exactly we are, please ask for clarification. I want to be sure everyone is on the same page and knows where we are in the process at all times.
[English]
With respect to the mechanics of the process, I want to remind honourable senators that when more than one amendment is proposed to a clause, the amendments must be proposed in the order of the lines in the clause. Therefore, before addressing an amendment in a clause, I will check to see if a senator intended to move an amendment earlier in the clause. If senators intend to move an amendment earlier, they will have an opportunity to do so.
Honourable senators, you should now have in front of you amendments from Senator Boisvenu and from Senator Carignan.
If a senator is opposed to the entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause. It would be useful to the process if a senator moving an amendment identified to the committee other clauses in the bill where the amendment could have an effect and where the senator will have further amendments. If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of the vote, the most effective route is to request a roll-call vote. Senators are aware that any tied vote negates the motion in question.
Before I proceed any further, I would like to know if there are any questions. A virtual clause-by-clause meeting is difficult for all of us, and I have to admit, especially for me, as I don’t have the clerk sitting next to me to prod me as to who wants to ask a question or what’s next. May I please ask now if there are any specific questions? I see none, so I will proceed.
Today we have a number of new senators. I will introduce the members of the committee. We have Senator Batters, the deputy chair; Senator Boisvenu, the critic of the bill; Senator Boniface; Senator Boyer; Senator Carignan; Senator Dalphond, the sponsor of the bill; Senator Dupuis; Senator Gold, Leader of the Government in the Senate; Senator Griffin; Senator Keating; Senator Martin, deputy leader; Senator Mégie; and Senator White. All of you are welcome.
I would also like to introduce officials who are here should there be any questions. From the Department of Justice, 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. We very much appreciate the officials making themselves available for today’s meeting.
Honourable senators, we will now start our analysis of the bill clause by clause.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-3, An Act to amend the Judges Act and the Criminal Code?
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
[Translation]
Senator Boisvenu: Madam Chair, I would like to move an amendment to page 2.
The Chair: Senator Boisvenu, could you please start with page 1?
Senator Boisvenu: I’m on page 2, Madam Chair.
The Chair: I also have an amendment to the preamble.
Senator Dalphond: The preamble is after that.
Senator Boisvenu: It’s later on.
The Chair: Very well. Carry on, senator.
Senator Boisvenu: All right. I’ll start over. I move as follows:
That Bill C-3 be amended in clause 1, on page 2, by replacing line 21 with the following:
“on matters related to sexual assault law, family violence and social”.
Can I explain my rationale, Madam Chair?
Senator Carignan: I am fine with that.
The Chair: Yes, carry on, senator.
Senator Boisvenu: My rationale is this. We heard from 15 witnesses. After reviewing their remarks, I noted that 8 of the 15 expressed their support for the amendment, which tells you how important it is.
According to the statistics on family violence in Canada, 75% of the cases heard by judges involve problems between couples. That includes domestic violence and, to a certain extent, sexual assault in the context of a violent relationship.
The witnesses did not demonstrate that an amendment to the bill would delay its passage by the government. That claim was not shown to be true.
When a committee examines a bill, taking the time to hear from many witnesses, but the committee is instructed not to make amendments to a government bill, as it has been repeatedly told, I wonder — as should my fellow senators — what the point of the study is, Madam Chair.
I do not think instructions like that are appropriate when the committee is studying this type of bill. The committee’s job is to make the bill better, and doing that means amending it.
In response to what we’ve seen in recent years, the bill refers to the social context and sexual assault. Sexual assault, however, is part of the social context, as is domestic violence. I think considering domestic violence as part of the social context and considering sexual assault separately sends a worrisome message: The concerns of women, who make up 52% of Canada’s population, are being diminished.
The bill should reflect not only the problems around sexual assault, but also the problems around women’s safety in Canada. According to the statistics on murdered women, in 2021, femicides in Canada are projected to increase by nearly 25% over 2018.
That is why I believe the bill should be amended to include domestic violence, a terrible scourge in Canada. Indigenous communities are also disproportionately affected by domestic violence. One in five women murdered in Canada in connection with domestic violence is Indigenous.
For those reasons, I maintain that the bill should be amended as per my amendment. The bill’s passage by the federal government should not be delayed.
Senator Dupuis: I have a question for Senator Boisvenu. May I ask it now?
[English]
The Chair: Yes, you may.
[Translation]
Senator Dupuis: Senator Boisvenu, I am trying to understand why you want to add family violence. It’s fine. I have no problem with it, but why are you not differentiating between domestic violence and family violence? You know as well as I do that domestic violence and family violence are two different things. The attempt to lump them together on the pretext that they are the same is extremely worrisome to me. In the end, the bill would address family violence, but not domestic violence. Would you be amenable to having your amendment refer to both family violence and domestic violence?
Senator Boisvenu: That’s an excellent point, Senator Dupuis. You are absolutely right. In debating the issue and reflecting on it, I was sometimes torn between domestic violence and family violence.
Quebec’s policy on family violence sought to group domestic violence and family violence together, but as you said, they are two different things. As I see it, family violence includes children; whereas domestic violence refers to a confrontation between spouses. I am entirely amenable to putting both domestic violence and family violence in the amendment.
[English]
The Chair: Senator Dupuis, do you want to respond to that?
[Translation]
Senator Dupuis: No, I think Senator Boisvenu’s answer was clear. The idea is to prevent a euphemism from diminishing women’s protection against discrimination.
[English]
Senator Batters: I want to briefly respond to that. Having practised family law in Saskatchewan for many years prior to becoming a senator, perhaps it’s a difference in language between French and English, or between Quebec and the rest of Canada, but family violence — or domestic violence, which is how it was often referred to — is commonly understood. It is part of the legal lexicon there to include not just violence of children or that sort of thing in the family but also with the domestic partner or spouses; that was absolutely part of how it was commonly understood and related in that particular context.
I want to say that I support this particular amendment. In the first week that we studied this, I had an opportunity to ask Jean Teillet about this particular issue, and she indicated, yes, this was something that they very much supported from their organization’s perspective. I think it’s an important addition, and I support it.
Another point I want to make is this: Yesterday, the government leader indicated that a successful amendment at this particular committee to introduce this could potentially be something that could delay the bill, and then there could be issues if there is an election. However, it’s important to remember that once a Senate bill is passed, as this one was — it originated in the House of Commons, it passed there and now we’re dealing with it in the Senate — it doesn’t go to the bottom of the Order Paper; it would be a message, similar to what happened with Bill C-7. The government decides what to do with those amendments, and then it is quite high on the Order Paper in the House of Commons when it is being dealt with in their procedure. So I think the government has a lot of power over how it’s dealt with in the procedures of Parliament. Thank you.
The Chair: Is there anybody else who wants to speak to this?
Senator Dalphond: Thank you very much. There were many comments made, and I would like to respond to a few of them.
First, our work is important, and this bill is really about a form of interpersonal violence. We know that interpersonal violence is not limited to sexual assaults; it could include many things, including cruelty against animals. That being said, we have a bill that comes to us from the House of Commons and that will be going back to the Senate by April 20 at the earliest. I don’t know when it will be voted upon in the Senate, but then it will have to go back to the House of Commons with a message, and then such a message will have to be voted in the House of Commons. You know the government is not a majority government, so yesterday, many witnesses have reminded us to consider these facts. That’s the first point.
The second point is that the Senate had amended the bill substantially on June 3, 2019, so we have really done our work here. If we have something else to do, it should be based on necessity and not on potential usefulness. I think the criteria should be “necessity.” Otherwise, perfection is often the enemy of something being done.
Looking at necessity brings me, in a sense, to the amendment. I think we had some witnesses — and I will refer to the second panel, when Justice Kent, on behalf of the judiciary — especially the National Judicial Institute — referred to the fact that they have delivered 21 sessions on issues that touched on sexual assault cases, like domestic violence, human trafficking, victim rights and trauma-informed treatment. She went on to say that, recently, the National Judicial Institute has developed digital electronic resources on issues related to sexual assault cases, and that, before Christmas, the National Judicial Institute issued a digital e-letter on family law that was dedicated entirely to the psychology and law of domestic and intimate partner violence.
So, already the training on domestic violence is also part of the Divorce Act, which has a complete set of provisions about that; it is part of the training being given by the National Judicial Institute.
More importantly, I have to point out that in a very recent Supreme Court judgment from only last year, Michel v. Graydon, 2020, the Supreme Court dealt with a family case about pensions and other issues. I want to quote two sections of this judgment, because they are relevant to our discussion this morning. This is the teaching from the Supreme Court to all the judges across the system in Canada:
This case too illustrates how children’s well-being and that of their custodian are intertwined parts of the same whole. Today, women still bear the bulk of child care and custody obligations and earn less money than men, so women’s poverty remains inextricably linked to child poverty. . . .
Women in relationships are more likely to suffer intimate partner violence than their male counterpart. . . . As a result, they are more likely to leave their home and belongings — and their financial security — behind and to seek shelter or become homeless.
Then they refer to statistics from Statistics Canada. The Supreme Court goes on:
The impact of a history of violence on a person’s emotional health and their consequent potential fear, unwillingness to engage with their past abuser, or inability to do so are just as apparent. In addition to this, “some abusive fathers may use the child support process as a way to continue to exercise dominance and control over their ex-wives”. . . .
The Supreme Court goes on and says:
Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape women’s lives and opens them up to experiences and risks less likely to be experienced by men: like intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, and the burden of most childcare obligations.
In other words, it’s part of the social context that judges must take into consideration when dealing with all types of situations that involve especially women and interpersonal violence.
The teaching is coming from the Supreme Court. The National Judicial Institute has started the training. I understand the spirit behind this amendment, but I have come to the conclusion that it is not, strictly speaking, necessary and it will unnecessarily jeopardize the adoption of this bill. So I will vote against this amendment. Thank you.
Senator Gold: I won’t repeat what Senator Dalphond outlined, except to say I agree. I think from a substantive point of view, from a drafting point of view, this amendment, though inspired by sentiments with which I and the government totally agree, is just not necessary. As the government has made clear in its testimony, the concept of family violence is clearly included in social context.
However, I do want to address the other issue to which reference was made about the risk that this amendment poses. Perhaps I can begin by stating that this is an argument to honourable colleagues for voting against the amendment. It’s not a directive or any such matter. Of course, we have the right and the duty to try to improve legislation, but we also have the obligation as legislators, some of whom around the table are very experienced legislators, to be mindful of the legislative and parliamentary environment in which we are operating. In that regard, I think it is important to underline the risks that this amendment, however well-intentioned, would pose to the passage of this bill.
We’re in a minority Parliament and in the middle of a pandemic. As we’ve seen in our work in the Senate and in the other house, a certain priority has been given and will continue to need to be given to give priority to COVID-19 relief measures. We’ve seen in our recent experience, even with Bill C-7, there’s simply no straightforward path for us to have our messages and our amendments considered in a timely manner even when we were faced with Bill C-7 in the face of an imminent declaration of constitutional invalidity.
Again, to those around the table with more experience than others, we know that the House of Commons works differently than the Senate. It doesn’t go through its Order Paper in the same way as we do. There are a limited number of government days with which it can bring forward issues and has to prioritize its issues when it does so. If we needed any evidence of that, we can only look at how few bills we’ve actually received from the House since we began sitting in this Parliament. We’re six months into this session of Parliament. There is not a single government bill at second or third reading. We’ve only received nine bills since September — four were appropriation acts; three were emergency acts; one was Bill C-7, which I alluded to, which was facing a court deadline; and Bill C-18, a response to the urgency to extend the U.K.-Canada trade relationship. There are currently 18 government bills on the House Order Paper, including the two Senate bills that we passed that have not moved an inch, and we have a budget on the way.
So if we want to jeopardize this legislation, the easiest way to do that is to amend it. This bill has the support of all parties in the House, as it did in the last Parliament before it died for reasons that we all understand, and certainly the Conservative members of this committee understand very well. This bill also incorporates the improvements that the Senate identified for Bill C-337, to which Senator Dalphond referred, in the last Parliament and, in particular, made it less prescriptive to respect the constitutional principle of the independence of the judiciary.
We’re in control of what we do with this bill. Now, we can take a leap of faith and hope that the House of Commons — because it’s not simply the government, but it’s the whole House — will deal with this in a way that doesn’t jeopardize its passage; or we can agree with Rona Ambrose and others who yesterday reminded us of the importance of this bill. This bill is an important contribution to an ongoing conversation between Parliament, the judiciary and the public. If I can quote her, she says that this bill:
. . . has been very carefully negotiated by the Attorney General of Canada and others. It is, as it sits, a bill that a lot of people are comfortable with. Could it do more? Probably. Do I wish it could do more? Sure. But my view right now is that we need to get this done.
If we want to make sure this bill is enacted — and all the witnesses told us that it’s an important step in the right direction — then we have the power to do so. The Senate can take a stand on behalf of survivors and get this done. That’s our choice with this vote. The government supports this legislation. I’m assuming that all senators on this committee support this legislation passing. The best way to do that is to pass it without amendments so that it can get Royal Assent in short order. Thank you, colleagues, for your indulgence.
[Translation]
Senator Boisvenu: I have two things to say. I have the utmost respect for Senator Dalphond’s position, but to his point that we should be looking at the necessity of the amendment, I would say this: 118 women were murdered in Canada in 2019, and more than 60% of those cases involved family violence. In 2020, it was 160 women, and in 2021, the number of women murdered in Canada is projected to be 180. Some 100,000 cases of domestic violence were reported to police, 30,000 of which were in Quebec, including 300 cases involving the attempted murder of women. If those figures do not satisfy the necessity test, I don’t know what does.
To Senator Dalphond’s point that domestic violence is part of the social context of the law and that training is already provided, I would say that training is already provided on sexual assault. Why, then, even bring forward this legislation, as Professor Sheehy asked?
It is false to argue that the amendment would delay the bill’s passage. The minister has the power to accept the amendment without delay. Moreover, I am sure the members of the House, in their infinite wisdom, probably have an entirely different take on the urgency of passing the bill. I have no doubt the amendment would receive unanimous support in the House of Commons.
Senator Carignan: Thank you. I am for the amendment and against the scare tactics being invoked as an argument. It’s almost uncomfortable to listen to. Yes, we are in a minority Parliament, but everyone agrees on the bill. It is a priority for the government. It bears the number C-3 and was in the government’s Throne Speech. This will merely send the House of Commons a message, and the government will have to respond; it can respond quite quickly the week of April 20 and make clear its priorities.
I think the argument that the amendment would jeopardize the bill’s passage and the whole song and dance we heard from Senator Gold are embarrassing. I don’t know whether this meeting is taking place in camera or in public, but for anyone watching, that argument calls into question the very role of the Senate.
Our job is to make bills better, and we do that conscientiously and meticulously. The House’s job is to hear and receive the feedback or, rather, amendments the Senate proposes and recommends. If we accept Senator Dalphond’s position and the argument about Bill C-7, it means the Senate has to bow down to the House and do what it is told.
The process is straightforward and can happen quickly. I see no risk of killing a bill that has this much support, particularly when the amendments favour more training for judges. This is no threat to the bill.
[English]
Senator Batters: First of all, I just wanted to point out that the witness I mentioned earlier, I didn’t have her organization’s name before me at the time, but she was from the Indigenous Bar Association, just so you have that.
I wanted to comment that we’ve heard two men here today, who are senators, tell us that an amendment regarding domestic violence is not necessary. Yet our witnesses, who were women and many of whom were Indigenous people who deal with vulnerable people every single day on these issues, told us that it is necessary.
For the government leader to come to our committee today to speak against such a short, straightforward amendment, when this government accepted major amendments on Bill C-7 just a few weeks ago — this is not something I’ve seen before: to speak against it, to try to scare senators into opposing it, and then to decry the lack of a government’s legislative agenda? Well, that’s kind of their job. That’s the government’s job. It’s not our fault that they have barely brought forward any bills and that they can’t move them appropriately if they think that’s the problem.
This bill was initially introduced by Rona Ambrose, the former Conservative Party leader. This bill was passed unanimously by the House of Commons twice, I believe. So to worry about how it might be potentially dealt with in the House of Commons, I think, is not a legitimate or realistic concern here. I think we need to exercise some sober second thought and pass a short, straightforward amendment that provides some additional protection for women and others who are suffering from domestic violence, which has really become even more of a problem in our country during this pandemic.
Senator Gold: I’m not going to respond to all of the things that have been said. For Canadians who are watching this, I think it’s responsible for the Senate to understand the implications of its decisions. In this regard, Rona Ambrose, to whom Senator Batters recently referred, was very clear that she did not believe that this bill needs to be amended nor should be amended and worried that it would be put at risk. Rona Ambrose, as a former Leader of the Opposition, knows very well the vagaries of Parliament in the House of Commons and how it differs from the procedure here in the Senate.
The fact remains that, as Senator Dalphond points out and as the government position has been made clear, this is, strictly speaking, not required for judges’ education to take into account all of the intersecting factors — family violence, conjugal violence, violence against animals. It is important, however, that we take seriously our responsibilities. If we want this bill to pass and not suffer the risk of it not passing because of the limited time available in the other place, then I urge senators to reject this amendment. I will close on that.
[Translation]
Senator Dalphond: I simply want to point out that Bill C-337, the original legislation behind this bill, was passed unanimously by the House of Commons, that we received two messages from the House of Commons beseeching us to pass the bill, and that we did not do so because of certain political realities in the Senate. The same strategy is being used this year, in other words, send the bill back to the House of Commons —
Senator Carignan: That’s ridiculous.
Senator Dalphond: Senator Carignan, I didn’t interrupt you when you were speaking, so I would appreciate the same courtesy in return. I think it’s important to be realistic. We are approaching the end of April, and we need to keep in mind what we heard from witnesses, especially Ms. Ambrose — I was a bit reluctant, but she convinced me yesterday. I found her position very compelling.
Do you recall what Justice Kent said when she appeared before the committee? She said that the mere introduction of Bill C-337 had sparked a meaningful dialogue between the judicial system and Parliament, that it had had an impact, and that, in the past four years, an effort had been made to provide training in all areas. I am sure the judicial system is listening to all of the concerns today and I am sure it will not turn a deaf ear to them.
Senator Dupuis: I have two things to say. First, we have nothing to indicate that the issue will be the subject of an ongoing conversation for the government. The government has made no such commitment. We aren’t even able to get the actual gender-based analysis plus that the government carried out, contrary to what we normally have.
Second, if necessity were truly the test for addressing this extremely important issue, why, then, did the government water down the few obligations Bill C-337 imposed on judges? As soon as the legislation says “you should do something,” the whole thing is watered down. This is a game of give-and-take between the legislative system and the judicial system about what we want the judicial system to do, even though — as Senator Dalphond so clearly explained — the Supreme Court, itself, recognizes the tremendous challenge that intimate partner violence poses to women and the clear discrimination that occurs in relation to violence.
I am convinced the Senate has work to do. I am much less convinced that the necessity test applies here. I find it appalling that a government bill should not have to clearly stipulate what constitutes violence against women, and that judicial independence, a recognized principle, cannot be reconciled with the idea that the impunity relied on by those who enforce the law is not limitless and they must therefore respect the fact that discrimination against women is prohibited.
I think that’s unacceptable.
[English]
The Chair: Senator Boisvenu, before I go to you I want to know if there is anyone else who wants to speak on this who has not spoken before. I don’t see anyone.
Senator Boisvenu, after your comments, you can move your amendment.
[Translation]
Senator Boisvenu: This will be the last thing I say.
It is directed mainly to the senators who are women. Family and domestic violence affects children, women and often seniors in the family. It is a type of violence that goes on for years. Yesterday, we heard from a woman who explained that, when judges do not receive special training provided by groups that advocate for victims of domestic violence, their lack of awareness regarding this type of violence can lead to decisions that endanger women’s lives.
The problem experienced by Indigenous communities relates not to the social context, but to the family violence context.
To make this bill better, we must think not only of Canadians, but also — and above all — of Canadian women, who make up 52% of the population. I think this bill fails to address an issue that affects many Canadian women.
For that reason, I move the following amendment:
That Bill C-3 be amended in clause 1, on page 2, by replacing line 21 with the following:
“on matters related to sexual assault law, family violence and social”.
Further to Senator Dupuis’s suggestion, I move the following subamendment:
“family violence and domestic violence”.
[English]
The Chair: Thank you, Senator Boisvenu.
Senators, is this amendment accepted?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I hear “no.” We will go to a roll-call vote.
Mr. Palmer: Is it your pleasure, honourable senators, to adopt the motion in amendment as sub-amended by Senator Boisvenu by adding, “violence conjugale?”
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
Mr. Palmer: The Honourable Senator Boyer.
Senator Boyer: No.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: Yes.
Mr. Palmer: The Honourable Senator Keating?
Senator Keating: No.
Mr. Palmer: The Honourable Senator Martin?
Senator Martin: Yes.
Mr. Palmer: The Honourable Senator White?
Senator White: No.
Mr. Palmer: The Honourable Senator Mégie?
Senator Mégie: No.
Mr. Palmer: Is there anyone who is a member of the committee who I have not called?
Yes, 5; no, 8; abstentions, 1. The vote is defeated.
The Chair: Honourable senators, the amendment is defeated.
Honourable senators, we now go to clause 2.
Mr. Palmer: Senator Jaffer, we still need to pass clause 1.
The Chair: I apologize. Shall clause 1 pass?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
Senator Boisvenu: On division.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clause 4 carry?
[Translation]
Senator Carignan: I would like to move an amendment to clause 4.
We discussed this a bit when we were hearing from witnesses. I want to come back to the initial bill, C-337, which required judges to provide reasons in writing. The bill passed unanimously in the House of Commons, so this shouldn’t be a problem.
I move the following amendment:
That Bill C-3 be amended in clause 4, on page 4, by replacing lines 10 to 12 with the following:
“ (3) The reasons shall be provided in writing.”.
The purpose is to ensure transparency by providing the reasons in writing. We want to make sure the rules of procedural fairness and natural justice are respected, so people know why decisions were rendered and so those decisions can be recorded and published. We do not want the victim to have to bear the administrative burden of obtaining the transcript of the stenographer’s notes relating to the decision. We realize what a burden it is on victims when they try to obtain the reasons in writing and those reasons cannot easily be published or recorded.
Furthermore, the Quebec Court of Appeal recently criticized the wait times and complexity associated with the transcription of stenographer’s notes, calling the issue a systemic problem for the courts. We want to be sure victims are not the ones who have to bear the burden or suffer the consequences of the process.
Clearly, as Minister Lametti said in 1990, when he was writing articles, the principle of a written decision brings a rational dimension to the compilation of decisions. Intellectually, written decisions make things much easier, significantly improving comprehension and accessibility. That is an important aspect in administrative law, but even more so in criminal law.
As I said earlier, it was something former Minister Ambrose suggested as well. Yesterday, when I asked her why the provision had been removed, she said she did not know, but said that cost was a factor. With this bill, the government has decided to put the cost on victims rather than absorb it itself.
Whether decisions were relayed or recorded in writing had nothing to do with the time frames at issue in Jordan. As the Supreme Court made clear in R. v. K.G.K., in 2020, judicial writing time does not count toward the Jordan time limit. [Technical difficulty] In that case, the court noted that the writing of reasons in connection with verdict deliberation improves understanding and transparency.
Lastly, Quebec’s Youth Protection Act contains a provision stipulating that all decisions or orders be given in writing, so providing decisions in writing does not specifically give rise to a systemic problem.
I move that the bill be amended at this stage.
Senator Boisvenu: I support the amendment on the basis of two principles.
The first is transparency, which is apparently an intrinsic value of the current government — far be it from me to say otherwise. The government has endeavoured to be as transparent as possible, but this bill does the opposite.
Senator Carignan spoke about the victims. What victims go through when dealing with the justice system is indeed unimaginable, when you consider the fortitude it takes to face the process in all its complexity, not to mention the trauma they have already experienced and continue to experience throughout the process. This is really about respect for victims.
At the very least, the justice system owes victims respect. It is disrespectful to victims to make them go looking for the reasons after the trial and to, then, provide them with those reasons orally, rather than in writing.
I will therefore be voting for Senator Carignan’s amendment.
Senator Dalphond: I have a few quick comments on this amendment.
To start with, the first thing to be corrected: Senator Carignan must surely have been mistaken when he said that the amendment about written reasons had been unanimously adopted by the House of Commons. He was misinformed, because the Standing Committee on the Status of Women amended the bill from April to May 2017, removing and replacing the requirement to provide written reasons across the board, and ended up with the provision we have before us.
So the bill was amended in May 2017; the amendment was then adopted unanimously by the House of Commons in May 2017, and written reasons were replaced with written or recorded reasons. That was the first clarification. I’m sure it wasn’t said to mislead us, but I am mentioning it so that we don’t get misled.
The second thing to note: I believe Senator Carignan had left the room when the Department of Justice officials answered his questions. He had asked the same question that he is presenting to us today, citing the same article by Minister Lametti.
After he left, department officials explained why the clause was written as it is now. There was a constitutional reason: respect for provincial jurisdiction over the administration of justice.
Madam Chair, I was wondering if the Department of Justice officials are still available to us. Can they once more provide the argument made at the time, for everyone’s benefit?
Ms. Gillian Blackell, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: If I may, Madam Chair. Thank you, Senator Dalphond.
[English]
Indeed, this was an amendment from the Standing Committee on the Status of Women in May 2017, and there were a number of constitutional considerations behind that. At the time, the issue of Jordan was front and centre and still is. However, quite rightly, there have been subsequent Supreme Court decisions in relation to the delay related to the production of the decisions.
However, the most concerning issue relates to the constitutional division of powers. This is because Parliament has, certainly, the competence to require reasons in decisions in criminal matters as per our jurisdiction over the criminal law. However, the constitution, maintenance and organization of the courts of criminal jurisdiction is expressly excluded from our jurisdiction under section 91(27) and expressly included in the jurisdiction of the provinces under section 92(14) of the Constitution Act.
As a result, Parliament could not require courts with criminal jurisdiction — both provincial courts and superior courts — to publish bound copies of their reasons every month, so publication online is no different.
In addition to not having the ability to specifically require something in the area of administration — the constitution, maintenance and organization of the courts of criminal jurisdiction — the federal Parliament is also unable to impose specific financial obligations on a province, which, unfortunately, in this context, is related to the requirement to produce written reasons or to publish transcripts, which for some courts are outsourced to private companies. That is not to say this is not an important consideration. Unfortunately, from our perspective, it is beyond our jurisdiction. Thank you.
[Translation]
Senator Dupuis: I have a question for Ms. Blackell.
Could you please explain to me how the government interprets the criminal procedure issue in section 91(27)?
I read 91(27), which sets out federal constitutional authority over criminal law, excluding the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.
Does that mean that, in the government’s view, writing up decisions is not part of the criminal procedure?
Ms. Blackell: Thank you very much, Senator Dupuis.
[English]
The criminal procedure is included in the Criminal Code of Canada, which applies across the country. So all of the substantive criminal offences, defences and procedures are contained in the Criminal Code, which is clearly a federal jurisdiction. Criminal practice and court procedure is a different matter, which is dealt with at the provincial level by the courts of criminal jurisdiction, so they are rules of court and they are practised before those courts.
I also wanted to point out that in the amendment to Bill C-337, the changes reflect the current provisions under 278.8(2) with respect to reasons for third-party record decisions, as well as 278.94(5) with respect to reasons for the evidentiary decisions in rape shield and records in the hands of the accused’s applications. Therefore, there is a consistency within the language and the code, specifically in the same section in relation to sexual offences. That is an important approach that is taken in terms of legislative drafting to ensure consistency in approaches. So that’s why the language is the way it is as proposed and amended before the Standing Committee on the Status of Women in 2017. Thank you.
[Translation]
Senator Carignan: Senator Dupuis raised an excellent point. I believe that is the constitutional answer to the point you are making. Unless we are shown a ruling from the Court of Appeal or the Supreme Court requiring that decisions be in writing under the separation of powers, I would argue that section 91(27) of the Constitution Act takes care of the problem.
[English]
Senator Gold: Thank you all for your input. I think the government’s position on the constitutionality is correct, but my point is not that primarily.
What lies behind this amendment is an important point about the unfair burden on survivors and victims to assume the costs. I don’t think anything should take away from that underlying reality. I think, however, that the Senate has an opportunity to make its views known, and it should do that when we come to the observations. I know that there are observations that have been circulated on this subject, and I look forward to our discussion and adoption of those in the hope that it will encourage all levels of government — federal, provincial and territorial — to work together to provide greater access in a more timely fashion and in an affordable way to those victims who find themselves in the judicial process. Thank you.
[Translation]
Senator Dupuis: I would like the witness who answered me earlier to provide me with the exact references to the sections of the Criminal Code again, because I don’t understand the information she gave me.
Ms. Blackell: Certainly, Senator Dupuis. It was 278.8(2) and 278.94(5).
Senator Dupuis: Thank you.
[English]
The Chair: Senators, I see no other interventions, so will this amendment be accepted?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I see there is sufficient interest on both sides so we’ll have a roll call.
Mr. Palmer: Senators, the question is: Should the amendment carry?
The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: No.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: Abstain.
Mr. Palmer: The Honourable Senator Keating?
Senator Keating: No.
Mr. Palmer: The Honourable Senator Mégie?
Senator Mégie: No.
Mr. Palmer: The Honourable Senator Martin?
Senator Martin: Yes.
Mr. Palmer: The Honourable Senator White?
Senator White: No.
Mr. Palmer: Yes, 4. No, 8. Abstentions, 2. The motion is defeated.
The Chair: Honourable senators, as you know, this motion has been defeated.
We now go on to the preamble.
Mr. Palmer: Senator, we still have to pass the clause.
The Chair: Sorry. Shall this clause carry?
Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Carried, on division.
I would like to recognize that Senator Kim Pate is with us.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: The preamble is carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Honourable senators, does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Chair: The committee may proceed in camera to discuss text of observations.
[Translation]
Senator Carignan: No, I believe we can do it in a public meeting.
[English]
Senator Batters: Stay public.
Senator Dalphond: We should stay in public. This bill is about transparency, and I think the public has the right to know.
The Chair: Senators, I can’t hear either of you. Do you want it to be in public or in camera?
Hon. Senators: In public.
The Chair: It is agreed we will continue in public.
We will go to the observations. Senators, we have four observations, and we will start with Senator Boyer’s observation.
Senators, do all of you have Senator Boyer’s observation? I see everybody does.
Senator Boyer: Thank you. This observation is about the violence link that we heard. The reason that I am so interested in it is because I sponsored Bill C-84, where it was very clear that domestic violence and animals were closely intertwined. We do know that, for instance, there is a very symbiotic relationship between the Inuit and their dogs, and the relationship that we have with animals is very much all our relations; it’s considered. With this observation, there were many witnesses who spoke to this link and the importance of putting an observation in.
For instance, yesterday we heard Dr. Barrett and Dr. Fitzgerald talk extensively about it. We heard from the Honourable C. Adèle Kent on this issue as well on the very first day. We have a brief on the issue from Barbara Cartwright from Humane Canada.
It will be important to present this to the training package or have the judicial institute recognize that there is a link between animal abuse and interpersonal violence in the context of domestic violence and sexual abuse. It’s important to understand the complex ways that animals can be used to victimize vulnerable people. I’m hoping that we would agree to send this observation in based on that. Thank you.
The Chair: I see no other interventions.
Shall this observation carry? Carried.
We will now go on to the observation by Senator Dalphond.
[Translation]
Senator Dalphond: So, I have five observations, and one of those observations is basically identical to the one Senator Pate is proposing. So, I would agree to using Senator Pate’s proposal. I know she is not a member and she cannot move it, but if she wants, I would move that her amendment become an amendment for consideration. It’s amendment 4 on my list, it’s observation 4, under “access to recorded reasons.”
[English]
The Chair: Senator Dalphond, let’s go through each individual observation, please.
Senator Dalphond: Okay.
Senator Martin: I have a question for clarification.
The Chair: Certainly.
Senator Martin: Both Senator Boyer and Senator Dalphond are speaking about amendments for consideration. Are these not observations?
The Chair: They are observations.
Senator Dalphond: Yes, they are observations.
Senator Martin: Were these all amendments that were going to be made or proposed?
The Chair: No, observations.
Senator Dalphond: No, observations.
Senator Martin: Okay. I have heard “amendment” several times in my earpiece, so I just wanted to clarify that we are on observations because I keep hearing “amendments” from these senators. Thank you, chair.
The Chair: Thank you for asking for clarification. These are now all observations.
Senator Dalphond: Shall I move the first one, Madam Chair?
[Translation]
Senator Carignan: As Senator Martin was saying, we should stop using the word amendment.
For information purposes, since we are in public, what value do observations have, as opposed to amendments?
Senator Dalphond: Is the question directed at me? I don’t know.
Senator Carignan: It’s for clarification. I don’t know, for members of the public who are watching or listening, can we have the legal ramifications? [Technical difficulties] Does it change anything in the bill?
[English]
The Chair: I hesitate to speak about it, but an amendment changes the bill. An observation is something that we direct the government to look at. These are concerns we have that we want to bring up with the government. That’s my understanding, but I’m absolutely open to anyone wanting to improve my definition.
[Translation]
Senator Carignan: I just want to make sure that the observations don’t change the bill and that the government is not required to act on them.
[English]
The Chair: Observations have no procedural weight.
[Translation]
Senator Dupuis: I have a question for Senator Dalphond.
I’m trying to understand the list in your sentence. I agree with what is there. I am just trying to understand. Social context includes circumstances related to history, gender and race. The list contains a number of prohibited grounds for discrimination. Discrimination in Canada is prohibited on a number of grounds, and I see several listed in your first sentence.
My question to you is, why did you choose not to include all of the grounds for discrimination?
Senator Dalphond: So, I gather that we have moved on to consider the first observation.
So, there are five observations, and I will present the first one. However, first I would like to add a comment to what the chair was saying about the weight given to observations. You will recall that, in some judgments, the Supreme Court or other courts will refer to parliamentary debates, including parliamentary committee reports and the observations therein. As a result of observations we made on Bill C-78 regarding the Divorce Act, a university professor even wrote a long article on the Senate’s observations and she suggests that they be considered by judges when they interpret the new divorce legislation.
With respect to the five observations, the first deals with the importance of considering social context in the judging process. Obviously, it’s based on Supreme Court decisions; over twenty of them refer to how important it is for judges to take social context into account. As for the list that’s there, the words used include the circumstances, but are not intended to be limited to them in any way, in either the French or the English version. Here in the proposal, we have adopted the phraseology the Department of Justice uses in its definition, in the documents supporting the bill before us.
Senator Dupuis: I have another question, Madam Chair. May I ask it?
The Chair: Yes.
Senator Dupuis: Senator Dalphond, would you object to adding the word “sex” to the list in the first sentence? This bill involves sexual assault and women are the primary victims.
I have another question for you. In the event of ambiguities in the interpretation of a statute, we refer back to the lawmaker’s intent — I feel that’s important for you to remember — and it’s true that we often refer back to parliamentary discussions, whether in the House of Commons or the Senate. In that sense, shouldn’t we have something about that, in the last sentence, for example? Or would it be possible to add that “the committee considers it important that consideration be given to” or “the committee recommends?”
In other words, would it be possible for us as a committee to send a message to the government? Can you find some wording in your observation that would show we consider these issues to be quite important? We don’t just want to report the witnesses’ positions, but we find that certain things you identify in that paragraph are important enough for us to say that we urge the government to take those issues into account.
Senator Dalphond: Thank you, that’s a great suggestion. I don’t want to take up too much time, so maybe I could try to write something up and we could come back to it. On the question of sex, I don’t mind, but I understand that the word “sex” has been replaced with the word “gender” because some people don’t define themselves as male or female. However, we could use the phrase “to sex or gender.”
Senator Dupuis: That’s exactly what I was talking about, thank you.
Senator Dalphond: So, I gather that you are suggesting we use “to sex or gender.” I have no objection to that.
[English]
Senator Batters: I wanted to make a general point in dealing with these observations. These are such lengthy observations and they’re not generally the types of observations that we’ve had at this committee before. Usually, observations are specific, short and deal with the government. However, when we have a short bill to begin with overall and we have observations that are considerably more lengthy than what we’ve seen in the bill, it’s just not the way that this committee generally goes about things — not to say you always have to do things the same way. There needs to be a circumscribed way we deal with observations, and we should do so in a certain manner. These lengthy dissertations about different topics are not necessarily helpful for these types of issues.
The Chair: Senator Batters, I was going to ask at the end of the meeting if steering would have permission to make these shorter, but you have beat me to it. Though, I will ask that at the end.
Senator Dalphond, your observation.
Senator Dalphond: The only thing I can say is that the observation is six lines long, and I understand that Senator Batters made similar comments when we looked at the Divorce Act. She made the same comments that it was unusual, but the new Senate has adopted new ways of reporting, and this has been seen in the academic world as being an improvement.
That being said, this observation was only six lines, so I have nothing else I can say. We tried to make it even shorter than the explanation given by the department.
The Chair: Senator Dalphond, do you accept Senator Dupuis’s suggestion that the committee “urges” and do you accept that you’re adding “sex?” Is that correct?
Senator Dalphond: Yes.
The Chair: Senators, do we accept this observation? Is this observation carried?
Hon. Senators: Agreed.
The Chair: I hear nothing else, so this observation is carried. Senator Dalphond’s second observation is on gender-based violence. Is this observation carried?
Hon. Senators: Agreed.
The Chair: The third observation is on family violence. Is that observation carried?
Hon. Senators: Agreed.
The Chair: Senator Dalphond’s fourth observation is on access to recorded reasons. Is that observation carried?
Hon. Senators: Agreed.
The Chair: Now, that’s the observation that Senator Pate had, and if I’m not mistaken, Senator Dalphond, you had suggested another process.
Senator Dalphond: Well, I suggested that we could use the wording proposed by Senator Pate instead of mine. Three or four words are different, but it’s the same idea. I’m happy to take her suggestion or proposal. However, I will add to it if she agrees that we keep —
The Chair: Okay, we’ll deal with it when we come to that. We are not on Senator Pate’s observations at the moment; we are on yours. You are agreeing at this point to take the access to recorded reasons, right?
Senator Dalphond: I agree that we will consider it later under the name of Senator Pate. Is that okay?
The Chair: That’s fine. The next observation deals with training of provincial court judges. Is that acceptable, senators?
Hon. Senators: Agreed.
Senator Dalphond: Maybe I should explain —
The Chair: There is no need. People have accepted it. Let’s move to the next set of observations from Senator Dupuis.
[Translation]
Senator Dupuis: Observation 1 reads as follows:
The committee heard from a number of community organizations representing sexual assault victims, who testified that they should not only be consulted on the development of, but also be invited to participate in delivering, the training provided to federal judges. The committee is concerned that the expertise of such organizations is not being put to direct use.
[English]
The Chair: Senators, is this an acceptable observation? Does everyone accept it?
Hon. Senators: Agreed.
The Chair: Your observation No. 2, Senator Dupuis.
[Translation]
Senator Dupuis: The second observation is as follows:
The committee considers it unacceptable that the authorities responsible for training judges are refusing to disclose any information about the content of the training provided to federal judges, as they consider the content to be for judges only. The committee recognizes the principle of judicial independence, but considers that it is not incompatible with the judiciary’s need to be transparent and accountable to Canadians, who finance the judiciary’s operations. The erosion of public confidence —
[English]
The Chair: Senators, is this observation acceptable?
Hon. Senators: Agreed.
Senator Dupuis: I’m afraid I’m not done.
The Chair: Yes, but we all have it, Senator Dupuis. We now go to Senator Pate’s observation — oh, Senator Gold has a point.
Senator Gold: I find the language somewhat sharp with regard to this. I wanted to register that. I don’t have a suggestion to soften it. I simply wanted to go on to record as saying I think it is a rather strong statement, which makes me somewhat reticent.
The Chair: Senators, the observations have now passed.
Senator Dalphond: We’re still on the same observations. I raised my hand because I wanted to make the same comment as Senator Gold and suggest to Senator Dupuis that she may be willing to consider the following.
[Translation]
Senator Dupuis, the text could begin as follows:
The committee invites the authorities responsible for training judges to disclose as much information as possible about the content of training provided to federal judges. . .
As Senator Gold was saying, I believe wording like that would be a little less sharp. In his testimony, Justice Kent told us that a certain amount of information was posted on the National Judicial Institute’s website. So I believe you are inviting them to post more.
[English]
The Chair: Senator Dupuis, we have already passed your observations. I leave it in your hands. Would you like to accept the change, or are you happy with your suggestion?
[Translation]
Senator Dupuis: First, I’d like to say that “sharp” language may be a compliment. I wanted my comment to be explicit.
Justice Kent’s testimony was that, as a principle, everything related to training belongs to the judges. I find that unacceptable. Senator Dalphond, could you repeat the beginning of your suggested change? I have a feeling I will be fine with it.
Senator Dalphond: So:
The committee invites the authorities responsible for training judges to disclose as much information as possible about the content of training provided to federal judges. . .
Senator Dupuis: Madam Chair, I confirm that I accept that change to my observation No. 2.
[English]
The Chair: Senators, are you willing to accept that? I don’t see anybody saying no. It is accepted.
We will now go to Senator Pate’s observation. Honourable senators, Senator Boyer will be moving the observations, but may I please ask the committee’s indulgence in having Senator Pate present them? Is that acceptable, senators?
Hon. Senators: Agreed.
Senator Pate: Thank you very much to all the senators.
Senator Dalphond has indicated that his is similar. I think we could combine the two. I like his stronger language of “urging” the government as opposed to mine of “encouraging.” If I could suggest that we include the beginning part of Senator Dalphond’s in terms of the committee having heard that access to — do you want me to read how I suggest we combine them?
The Chair: Yes, please.
Senator Pate: The committee has heard that access to recorded reasons raises challenges for many sexual assault complainants in terms of disparate processes across the country, financial resources and time. Written decisions provide a degree of transparency and public accountability not available with recordings of oral decisions, which is especially important in sexual assault prosecutions.
The committee urges the Minister of Justice and Attorney General of Canada to strongly encourage provincial and territorial governments to make the transcripts of the decisions of sexual assault cases for all courts under their jurisdictions readily available, ideally online in a searchable database. This would allow anyone with an internet connection to access the decisions that are currently recorded but not reported. For greater certainty, this observation is to be interpreted in a manner consistent with existing safeguards for identity.
The Chair: Senators, is that observation acceptable?
Hon. Senators: Agreed.
The Chair: The next observation is on the law commission. Is that acceptable, senators?
Hon. Senators: Agreed.
The Chair: Those were all the observations I had, senators. Have I covered everyone’s observations?
Senator Batters: About the Law Reform Commission observation, I was wondering if Senator Pate could give us a bit more of an explanation on that. She mentioned yesterday that the Law Reform Commission has not been used for some time, but it has not been formally disbanded. Is that correct? Perhaps Senator Gold might want to respond with what the government proposes to do about that particular body.
Senator Pate: Thank you very much for the question, Senator Batters. The reason for this is yes, the law commission — basically all of the information and the legislation allowing it to exist still exists on the books. It merely requires resourcing through a budget and Governor-in-Council appointments for it to be resurrected.
The reason for the observation in this way is that a number of people, including the minister himself, noted they don’t have a reliable way of keeping track of the types of data that many people were asking about, including many of you and our colleagues. As well, Justice Kent, when she appeared representing the National Judicial Institute, indicated that it wasn’t within their mandate to monitor the decisions, so even though they are doing training or are being mandated to do training, it isn’t in their mandate to monitor that or keep any data. She indicated there is no hard data, and so it struck us. Certainly Jean Teillet, when she appeared for the Indigenous Bar Association, also talked about the need to ensure there is confidence in this process and in the criminal legal system once these sorts of processes are put in place. It would be a way to monitor the implementation of this legislation as well as, going forward, any other recommendations in terms of sexual assault.
Senator Gold: I’m not able to answer Senator Batters’ request for information about the government’s intent. In my previous life, I benefited as an academic from the work of the Law Reform Commission of Canada and did a number of studies for them. Of course it’s very regrettable, in my opinion, that the funding was cut on a number of occasions by, in fact, previous Conservative governments.
The reason I raised my hand on this was simply that — and I don’t oppose this — I would like to register an abstention only because, unless I’m missing something, I don’t believe this was the subject of much discussion or witness testimony at the committee. I will stand corrected if I’m wrong. It just struck me. As important as I think the Law Commission of Canada could be and should be, I’m just not sure that it arose from our committee hearings on this subject. I wanted to register that for the record.
Senator Martin: If the leader wishes to abstain, are we going into a vote on this particular amendment?
The Chair: I wasn’t planning to, but if that’s what everyone desires —
Senator Gold: I just wanted to register this comment, which is that I thought this did not arise from the committee work in the same way as the other ones did. I don’t want to stand in the way of this, but I wanted to register this point for the record.
Senator Martin: It’s just that earlier the leader said he wanted to abstain, so that is why I was curious whether we were going into a vote on this particular observation. He’s adding his comments rather than abstaining; that’s what I understand now.
Senator Batters: I wanted to ask Senator Gold a question. He made the reference that it was a Conservative government that decided not to fund the Law Reform Commission anymore, and he indicated “regrettably.” So then has the government — the Trudeau government has been in place for five and a half years now — promised, in any Throne Speech, campaign or platform document or other way, to bring back the Law Reform Commission? Is that something that the government intends to do or not?
Senator Gold: Thank you for a moment of Question Period. I’m not in a position to answer that question. I was simply registering my experience with the Law Reform Commission of Canada and my personal belief that it has done good work in the past.
[Translation]
Senator Dalphond: I would like to add that we already proposed this for Bill C-51. I feel it’s a good idea that the Senate regularly remind the government that it’s time a Law Reform Commission was established.
[English]
Senator Pate: In response to Senator Gold’s request, I did ask this question of a number of witnesses, and that’s including the minister. He didn’t say specifically “the law commission,” but he did say there would need to be some monitoring processes.
The Chair: I’m assuming we had already accepted this observation. Senators, is it agreed that the observations as amended be adopted and that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations — taking into consideration this meeting’s discussions — with any necessary editorial, grammatical and translation changes required?
Hon. Senators: Agreed.
The Chair: Thank you. Senators, that completes today’s work, except there is one thing that Senator Dupuis brought up: the gender-based violence. We have not got the appropriate gender-based violence documents that we normally get. Senator Dupuis, do you want to add anything? We should ask the officials to provide us with proper gender-based violence documents.
[Translation]
Senator Dupuis: I move that the committee request the Justice Minister to submit the document he usually submits to our committee showing the gender-based plus analysis conducted by the Department of Justice.
[English]
The Chair: Does everyone agree?
Hon. Senators: Agreed.
The Chair: My last thing: Is it agreed that I report the bill without amendments and with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, senators. You were all very patient today and we will see you all on April 20.
(The committee adjourned.)