Tuesday, April 20, 2021

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

FIFTH REPORT

Your committee, to which was referred Bill C-3, An Act to amend the Judges Act and the Criminal Code, has, in obedience to the order of reference of Thursday, February 11, 2021, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

Observations to the fifth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-3)

Violence link

The committee heard evidence on the violence link, that is, the evidence-based link between violence toward people (interpersonal violence) and violence toward animals (animal cruelty). An understanding of this connection is needed to properly adjudicate on certain offences under the Criminal Code, including offences relating to bestiality. An understanding of the violence link is also important to properly apply the new definition of “family violence” found in the Divorce Act, which includes threats to, or the killing or harming of, an animal.

Moreover, judicial training on the violence link can help dispel myths and stereotypes about the behaviour of victims. For example, the committee heard how companion animals can be used to silence victims; that animal abuse is associated with an increased risk of severe intimate partner abuse (including sexual abuse); and that many victims delay leaving their partner due to concerns for their pet’s safety. These factors can help with understanding the victim’s behaviour and protecting them from further victimization. For these reasons, the committee suggests that training on the violence link be included in the design of judicial education seminars on social context.

Social context in judging

Social context includes circumstances related to history, sex, race, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age, socio-economic background, children, and family violence. As the National Judicial Institute and other witnesses before the committee underscored, understanding the realities of individuals who appear in court is critical to the proper application of the law and to enhancing public confidence in the justice system.

Gender-based violence

The committee urges the Government of Canada to ensure adequate funding is available for Canadian judicial training on gender-based violence for all judges.

Family violence

The committee notes that the National Judicial Institute, during its appearance before this committee, stated that the “psychology and law of domestic and intimate partner violence” are part of the judicial training curriculum they provide. The recently updated Divorce Act includes provisions that focus, for the first time, on family violence and its definition, which includes “a pattern of coercive and controlling behaviour”. For these changes to have their intended effect, proper education in this area must be provided to all family law judges across Canada. The committee asks the Government of Canada to ensure adequate funding is available to achieve this objective.

Access to recorded reasons

The committee has heard that access to recorded reasons raises challenges for many sexual assault complainants in disparate parts of the country, as it requires financial resources and time. Access to reasons is key for transparency, which is especially important in sexual assault prosecutions. The committee urges the Minister of Justice 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 wide public access to 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 protecting the identity of complainants, if the complainant so chooses.

Training for provincial court judges

The committee is of the view that judicial education on sexual assault law and social context will enhance women’s equality, increase sexual assault survivors’ trust in the administration of justice, and reduce the intersecting discriminatory burdens borne by sexual assault survivors. Given that provincial court judges hear the vast majority of sexual assault cases, and to increase survivors’ confidence in Canada’s courts and the justice system across the country, the committee recommends that the Government of Canada provide funding to ensure the availability of sexual assault law and social context training through the National Judicial Institute for provincially appointed judges.

Community Groups

The committee has heard from many community groups representing survivors of violence against women, who stated that they should be directly involved in the development and delivery of training for judges. The committee is concerned that these groups’ expertise is not being sufficiently considered.

Equality, Transparency, and Confidence in the Justice System

The committee invites the authorities responsible for training federal judges to share the maximum information possible with respect to the content of training provided to federal judges. The committee appreciates the principle of judicial independence, but is of the view that it is not incompatible with the transparency and accountability that the judiciary owes to the public which funds the justice system.

The erosion of public confidence in the justice system will not be restored without a guarantee that the prohibition of discrimination against women is not merely words included in the Canadian Charter of Rights and Freedoms since 1982, but rather is a basic principle in how judges apply the law.

Law Commission

The committee observes that a law commission could play a role in monitoring and providing advice from an independent perspective regarding the ability of the Criminal Code and legal system to respond adequately to systemic bias and discrimination, including sexism and racism, where individuals have experienced abuse or sexual assault.

Gender-Based Analysis Plus

The committee urges the Minister of Justice to provide the committee with more comprehensive information on the bill’s Gender-Based Analysis Plus (GBA+) conducted by the Department of Justice, as he has done in the past.