House of Commons Standing Committee on Justice and Human Rights - Bill C-5, an Act to Amend the Judges Act and the Criminal Code - February 4, 2020

Tab 1 Opening Remarks

February 4, 2020

I am pleased to be here today to speak to you about Bill C-5, An Act to amend the Judges Act and the Criminal Code.

The underlying objective of Bill C-5 is to enhance public confidence – and in particular, the confidence and trust of survivors of sexual assault – that the criminal justice system will treat them fairly. It is to reassure them 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.

The criminal justice system has long faced challenges in responding to sexual assault in Canada. Much progress has been made by this and previous Governments in bringing forward reforms aimed at enhancing the equality, privacy and security rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system. These reforms have at the same time balanced the rights of the accused in a manner consistent with relevant Supreme Court of Canada jurisprudence.

However, despite our robust legal framework dealing with sexual assault, the reporting, charging and conviction rates for sexual assault cases remain extremely low.  A key factor is concern on the part of sexual assault victims that they will not be believed, that they will be humiliated, or that they will be blamed. Such fears are reinforced by cases reported in the media of judges and other justice system actors doing this very thing. These instances send exactly the wrong message to victims: that to avoid re-traumatisation, they need to remain silent.

Members will recall that the genesis of this bill lay in several highly publicized decisions by provincial court judges in sexual assault cases that clearly demonstrated a fundamental lack of understanding of Canada’s well developed legislative framework on sexual assault. These cases seriously undermined the confidence of sexual assault survivors in our justice system.

Bill C-5 aims to redress this phenomenon. It aims to restore public confidence and the trust of survivors in the ability of our criminal justice system to hear cases in a manner that is fair, respectful, treats victims with dignity, and above all is in accordance with the law that has been carefully developed to ensure this.

However, judicial independence is also critical to public confidence, and a core constitutional principle. Because judicial independence requires judicial control over the training and education of judges, Parliament and the executive must tread very carefully. A bill that seeks to enhance public confidence in the justice system cannot achieve its goal if it at the same time undermines public confidence in judicial independence.

As members will know by now, the bill before us includes the amendments proposed to Bill C-337 by the Senate Committee on Legal and Constitutional Affairs. These amendments were designed to respond to concerns expressed by the judiciary and other stakeholders that the original bill tread too far into the realm of judicial independence. The amendments proposed fine-tuned the bill, while preserving its underlying objectives.

I would now like to turn to the key elements of the Bill, and in so doing will speak to the policy intent and how each element has been carefully crafted to address concerns about judicial independence.

First, the bill would amend the Judges Act to the effect that, to be eligible for appointment to a provincial superior court, a candidate must commit to participate, following their appointment, in education on matters relating to sexual assault law and social context.

The former Bill C-337 would have required all candidates to take training, which raised a number of policy and operational concerns. This amendment is much more targeted, and avoids these issues. By focussing on candidates rather than judges, concerns about Parliament mandating training for sitting judges are avoided, while the Government can be assured that the candidates it appoints are committed to taking training in this area, and the public can have confidence that all newly appointed judges will have received such training.

Second, the bill would amend the Judges Act to require that the sexual assault and social context training established by the Canadian Judicial Council be developed after consultation with survivors, the groups that support them, or with other groups and individuals that the Council deems appropriate. This is intended to ensure that that judicial education will reflect and respect the experience and perspective of those individuals. However, it is ultimately left up to the Council to determine who precisely it consults. This approach addresses concerns that the former bill was too prescriptive in this regard, and that the resulting training could be seen as “one-sided”. This could in turn have undermined the appearance of impartiality and potentially jeopardized the fairness of the trial for the accused.  The approach proposed in Bill C-5 avoids this concern.

Finally, in order to address judicial independence and related concerns, the bill takes a more general approach to the reporting requirements for the CJC. It would not require, as did the former Bill C-337, that the CJC report on the number of judges by court who take the training, and on number of judges who hear sexual assault matters without having taken the training.

Rather, Bill C-5 would require the CJC to provide to the Minister, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and on the number of judges attending, but without reference to any court. In so doing, Bill C-5 avoids the problematic aspects of the former Bill C-337, the most concerning of which were provisions which could be characterized as the “naming and shaming” of individual judges. The more general approach of Bill C-5 is intended to enhance accountability in the education of sitting judges on these matters while still acting as an incentive to encourage their participation.

In sum, each amendment to the Judges Act in Bill C-5 fully respects the constitutional principle of judicial independence that requires that judges themselves be responsible for establishing the content and delivery of judicial education.

The last element of Bill C-5 deals with amendments to the Criminal Code. These aim to ensure that decisions in sexual assault matters are not influenced by myths and stereotypes about sexual assault victims and how they are expected to behave. The Supreme Court of Canada has been clear that these myths and stereotypes distort the truth seeking function of the court.

Canadians and sexual assault survivors have a right to know that the robust sexual assault laws that have been developed in our country are being properly applied in judicial decisions. That is why Bill C-5 would require judges to provide reasons – in writing or on the record of proceedings – for their decisions in sexual assault matters. This provision would help to prevent the misapplication of sexual assault law and it would help improve the transparency of sexual assault decisions because recorded and written decisions can be reviewed.

I would now like to make some more general comments. I have described how each element of Bill C-5 has been carefully crafted to ensure that judicial independence is not undermined. However, I am also aware that there has been a suggestion that Parliament purporting to legislate at all in the area of judicial education sets a dangerous precedent. I understand the argument to be that it could encourage future governments to impose pre-appointment undertakings to reflect their own particular policy priorities.

I frankly do not share this concern, and believe that the harm we seek to address with Bill C-5, like the crime of sexual assault, has no comparator. I am aware of no other crime that is so widespread, yet so under-reported. There are almost never witnesses beyond the persons involved. To compound the difficulty, judges are called upon to apply an extremely complex area of the law whose very purpose is to counteract pervasive myths and stereotypes.

In sum, sexual assault is sui generis; it is a crime like no other, which presents unique and confounding challenges to the criminal justice system. To characterize these challenges as a mere step on a slippery slope is to ignore reality and the lived experience of tens of thousands of our fellow Canadians.

While it may not be inconceivable that another equally pressing public concern could at some point present itself in the future, I believe that our constitutional arrangements preclude any risk of parliamentary overreach to address it.   As we know, the courts are the final arbiters on constitutional questions, and I have every confidence that they would be fully prepared to tell a future Parliament when it has tread too far.

There has also been a suggestion that the bill does not address where the real problem lies, which is with the decisions of provincially and territorially appointed judges. To some extent, this is true.  The fact is that over 80% of sexual assault proceedings take place in the provincial and territorial courts.  Parliament has no authority to legislate in relation to provincially and territorially appointed judges. As a result, Parliament acting alone cannot effect change directly where it is needed most. However, this does not excuse Parliament, and every other actor in the justice system, from doing what they can to ensure that our justice system is fair and responsive.

As I already noted, an important objective of Bill C-5 is to restore the confidence of public and of survivors in the ability of the criminal justice system to hear sexual assault cases in a manner that is fair, dignified, and respects the statutory framework that Parliament has set out.  Bill C-5 will send a message to all Canadians and survivors of sexual assault in particular that Parliament is firmly committed and prepared to act to ensure a justice system that all Canadians can trust, especially those most vulnerable. But action must happen at all levels of government. It is my hope that Bill C-5 will be a catalyst for all jurisdictions and judiciaries in Canada to consider what measures can be taken that go beyond the symbolic and will result in meaningful and sustainable changes to the manner in which victims are treated by the criminal justice system.

This completes my formal remarks. I am of course happy to take whatever questions members may have.

Thank you.