Bill C-5: An Act to amend the Judges Act and the Criminal Code

Tabled in the House of Commons, February 7th, 2020

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-5, An Act to amend the Judges Act and the Criminal Code, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-5 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Continuing education for judges

Clause 1 of Bill C-5 proposes to amend section 3 of the Judges Act to require candidates for appointment to provincial superior courts to agree to participate in continuing education on sexual assault law and social context. Clause 2 would amend section 60 of the Judges Act to clarify that the Canadian Judicial Council may establish seminars for the continuing education of judges on sexual assault law and social context. Such seminars must be developed after consultation with persons or groups that the Canadian Judicial Council considers appropriate, such as sexual assault survivors and groups supporting them. The Canadian Judicial Council shall also ensure that such seminars include relevant content. Clause 3 would add a provision after section 62 of the Judges Act requiring the Canadian Judicial Council to submit an annual report to the Minister of Justice, for tabling in Parliament, on the details of seminars offered to judges on sexual assault law and the number of judges who attended.

Reasons for decision

Clause 4 would amend the Criminal Code by adding a provision after section 278.97 to require judges to provide reasons for decisions in sexual assault proceedings.

The amendments in Bill C-5 are intended to improve public confidence, and the confidence of sexual assault complainants, that courts will decide sexual assault cases in accordance with the law and without reliance on myths and stereotypes about how survivors of sexual violence ought to behave.

Right to an independent and impartial tribunal (section 11(d) of the Charter)

Section 11(d) of the Charter provides that individuals charged with an offence have the right to a hearing before an independent and impartial tribunal. This is a component of the unwritten constitutional principle of judicial independence. The right to an independent and impartial tribunal requires that courts be free to make decisions without interference, including interference from the executive and legislative branches of government. By legislating certain requirements for continuing education for judges, the proposed amendments to the Judges Act have the potential to engage the section 11(d) right.

The following considerations support the consistency of the proposed amendments with section 11(d). The amendments would maintain judicial control over the design and delivery of continuing education for judges. The amendments would preserve, and are intended to enhance, the courts’ ability to make decisions based on the requirements of the law and justice.

Equality rights (section 15 of the Charter)

Subsection 15(1) of the Charter provides that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, including on the basis of sex. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration. Continuing education on the interpretation and application of sexual assault law promotes the equality rights of sexual assault complainants, the majority of whom are women and girls.

Right to be secure against unreasonable search or seizure (section 8 of the Charter)

Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from unjustified intrusions upon their privacy, including in relation to their personal information. Sexual assault proceedings can entail the public disclosure of information that reveals intimate details about a complainant’s personal life. The right to privacy, personal security and equality of the complainant are also relevant considerations for the judge in determining whether certain records should be disclosed to the accused or can be admitted as evidence in the context of a sexual assault trial under the Criminal Code. Continuing education on the interpretation and application of sexual assault law helps to promote the privacy interests of sexual assault complainants, including through sensitizing judges to the needs and interests of complainants.

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