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

Q1 What does the bill do?

• The bill amends the Judges Act to restrict those eligible for appointment to the provincial superior courts to candidates who undertake to participate in training on matters related to sexual assault law and social context following their appointment. This ensures that newly appointed judges will participate in this important training.
• The bill also clarifies that seminars established by the Canadian Judicial Council (CJC) on matters relating to sexual assault law must be developed after consultation with individuals and groups or organizations it considers appropriate, including sexual assault survivors and groups or organizations supporting them.
• The bill requires 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 the number of judges attending. This is intended to enhance accountability in the education of sitting judges on these matters, and to act as an incentive to encourage their participation.

Q2 Is this the same bill that was introduced in the House by Ms. Ambrose?

• This bill is essentially the same as former Bill C-337 (the Ambrose bill) and takes into account the recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs (LCJC), which received widespread support of the originating sponsor, stakeholders, and many parliamentarians.
• While this bill is an important legislative step, the Government has also committed significant resources to support the availability of enhanced judicial training in this area. In Budget 2017, the Government provided the Canadian Judicial Council with $2.7 million over five years, and $0.5 million per year thereafter, to ensure that more judges have access to professional development, with a greater focus on gender and culturally-sensitive training.

Q3 What judges fall within the scope of the bill?

• The bill is intended to ensure that judges newly-appointed to the provincial superior courts take training on matters related to sexual assault law and social context. It also imposes reporting requirements on the CJC that are intended to enhance accountability in the education of sitting judges on matters related to sexual assault law, and to act as an incentive to encourage their participation.

Q4 Why does the bill not make it mandatory for judges to take the training?

• The effect of this bill is that it will be mandatory for a candidate who wants to be appointed as a judge of a superior court to agree to take this training following their appointment.
• However, it would be problematic for Parliament to impose mandatory training requirements on sitting judges. The constitutional principle of judicial independence requires that the judiciary control judicial education. This is necessary to ensure continued public confidence in an impartial judiciary that is free from interference or influence by the executive.

Q5 Why does the bill not address provincially and territorially appointed judges?

• Parliament has no authority to legislate in relation to provincially or territorially-appointed judges. However, the federal government can support policy and program measures. The government is committed to working with its partners to enhance the availability of training in this area.
• It is also important to note that many provinces have put in place significant initiatives to address concerns with the manner in which the criminal justice system deals with sexual assault cases. Some provinces have also introduced legislation similar in spirit to this bill, for example PEI, and Ontario.

Q6 Why does the bill not deal with unconscious bias and cultural competency?

• The Government is committed to ensuring that judges have the training necessary to help ensure a criminal justice system that is free from discrimination and sensitive to the cultural context of those involved.
• While the bill does not directly address the mandate commitment in relation to unconscious bias and cultural competency training there is some overlap with social context, which is covered by the bill, and unconscious bias and cultural competency. We also understand that the National Judicial Institute is planning to provide stand-alone education on these issues in the near future.
• In terms of PT judges, while the Parliament could not in any event legislate in relation to these judges, the federal government can support policy and program measures. The Department is working with its partners to enhance the availability of unconscious bias and cultural competency training to provincially and territorially appointed judges.

Q7 Will the training being offered in matters relating to sexual assault law be culturally sensitive?

• Yes. All training offered by the NJI takes social context into account. The Canadian Judicial Council has formally recognized that effective judicial education demands a three-dimensional approach encompassing substantive content, skills development and social context awareness. Social context awareness is considered essential to ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. Given the importance of social context awareness, the National Judicial Institute, which collaborates with the CJC as the primary provider of judicial education for the judiciary, seeks to integrate this element as well as substantive law and skills development in all of its programs.

Q8 Will the training being offered in matters relating to sexual assault law be trauma informed?

• Education in matters relating to sexual assault must "include instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants." It also requires the Canadian Judicial Council to ensure that education is developed, "after consultation with persons, groups or organizations the Council considers appropriate". For reasons of judicial independence the content and delivery of judicial education must be controlled by the judiciary. Apart from what is mandated by the legislation, the judiciary will be responsible for determining the content. However, the requirement to consult in the legislation is intended to ensure that the training is balanced and informed.

Q9 Why does the bill not require the Canadian Judicial Council to report on seminars offered for the continuing education of judges on matters related to social context?

• The original intent of Bill C-337 was to address a perceived need for specialized training in matters relating to sexual assault.
• The intended purpose of the reporting requirement was to enhance accountability for training of judges in this area and act an incentive to superior court judges to participate.
• The Canadian Judicial Council (CJC) has formally recognized that effective judicial education demands a three-dimensional approach encompassing substantive content, skills development and social context awareness. Social context awareness is considered essential to ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making.
• Given the importance of social context awareness, the National Judicial Institute, which collaborates with the CJC as the primary provider of judicial education for the judiciary, seeks to integrate this element as well as substantive law and skills development in all of its programs.
• The integration of social context education in all its programming makes it much more difficult to quantify. This is in fact not consistent with the original intent of the bill, which dealt only with sexual assault law.

Q10 How does Bill C-5 change the status quo?

• A key objective of Bill C-5 is to restore public confidence and the trust of survivors in the ability of our criminal justice system to hear sexual assault 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.
• Bill C-5 will send a message to all Canadians, and survivors of sexual assault in particular, that Parliament is committed and prepared to act to ensure a justice system that all Canadians can trust, especially those most vulnerable. I hope Bill C-5 will also be a catalyst for justice actors in other jurisdictions to consider what measures may be appropriate to achieve this objective.

Q11 If superior court judges only hear a small percentage of sexual assault cases, why are they being targeted?

• Parliament only has authority with respect to superior court judges and cannot legislate in relation to provincially and territorially appointed judges. Because the vast majority of sexual assault cases are heard in lower courts, Parliament acting alone cannot effect change directly where it is needed most. For this reason, action is needed by all actors in the justice system. But the fact that Parliament doesn’t hold all the levers is not an excuse not to act at all. Bill C-5 is a demonstration of Parliament’s commitment to ensuring a justice system that is fair and responsive to all Canadians and it is hoped it will act as a catalyst for all jurisdictions and judiciaries in Canada to consider measures that can be taken to achieve this objective.

Q12 How does this bill address concerns about judicial independence?

• Bill C-5 incorporates all of the refinements recommended by the Senate Committee on Legal and Constitutional Affairs that were carefully designed to address concerns in relation to judicial independence.

Q13 What is to stop the Government from imposing other training requirements on new superior court judges?

• The harm sought to be addressed by this bill is unique. There is no other crime which affects so many victims, yet goes so unreported. Nor is there any area of criminal law that is as complex, or on which so much legislative effort has been spent to counter myths and stereotypes. While it is possible that some comparable public harm may present itself at some future point, we can be confident that the courts, as final arbiters of constitutional issues, will let Parliament know when the solution adopted treads into impermissible constitutional territory. Fear of a slippery slope is no excuse for Parliament refusing to take necessary steps, or to do the right thing.

Q14 Who is responsible for providing training to the superior court judiciary?

• In order to respect the principle of judicial independence, training for judges must be controlled by the judiciary. The Canadian Judicial Council is responsible for establishing the professional development requirements for superior court judges. The Canadian Judicial Council collaborates closely with the National Judicial Institute, which is responsible for the overall coordination of judicial education in Canada, in addition to being a primary education provider. The NJI is an internationally recognized, judge-led organization that is independent from government.

Q15 What education in matters related to sexual assault law does the NJI offer to superior court judges?

• The Canadian Judicial Council’s Policy on Professional Development makes it mandatory for newly-appointed superior court judges to complete a new judges program, as well as a broader program designed to be taken within the first five years of appointment. The curriculum of these programs includes sexual assault law, as well as social context education. In addition, the NJI offers a number of specialized courses on criminal law, evidence, the Charter, and jury charges, in which sexual assault law is relevant to the objectives of the course. Finally, the NJI has a growing library of video-casts on issues related to sexual assault law.

Q16 What social context education does the NJI offer to superior court judges?

• The CJC has recognized that effective judicial education must include social context awareness to ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. Given the importance of this element, all NJI programs seek to integrate substantive law, skills development and awareness of social context. As well, the mandatory program for new judges includes a two-day module dealing with social context. The NJI also offers social context awareness as stand-alone courses or modules addressing social themes. For example, an annual seminar on challenges in judging focusses on particular social contexts, such as living at the margins, or with a disability or other health status.

Q17 What education in unconscious bias or cultural competency does the NJI offer to superior court judges?

• There is a degree of overlap between unconscious bias and cultural competency and social context awareness. Social context education is designed to teach awareness and skills for judges to ensure that all people who come into the courtroom are treated respectfully, fairly and most important, equally. Many people coming into the courtroom suffer from disadvantage, be it poverty, gender, gender identity, disability, or historical mistreatment such as that experienced by Indigenous peoples. As well, the courtroom is an increasingly culturally diverse place. Social context education addresses all of these issues, both singularly and through their intersection.
• There is no one single program dealing with unconscious bias or cultural competency. However, the NJI is planning to integrate this into the mandatory new judges’ curriculum in the near future.
• This said, for the last number of years, the NJI has offered regular national programs on Indigenous law that include a focus on the Truth and Reconciliation Commission’s Calls to Action and will address the recommendations of the MMIWG. Many if not all superior courts have also included Indigenous law and cultural competency in their individual annual programs.
• More broadly speaking, education on race, culture and religion has been included in social context education for the past 20 years, as is the case for a number of the national programs offered by the NJI. Individual courts also address specific cultural matters relevant to their region.

Q18 You have addressed education for superior court judges, what about PT Judges?

• Provincial and territorial Judges may attend NJI national programs, if space is available, on a cost-recovery basis, other than programs that are restricted to federally appointed judges.
• PT judges may also attend a two-week training session which focuses on substantive law, which may include sexual assault law. To the extent resources permit, the NJI also facilitates some training for provincial judges.
• The Department is currently working with its partners to enhance the availability of unconscious bias and cultural competency training to provincially and territorially appointed judges.

Q19 Why does the Bill contain a requirement for reasons in sexual assault decisions?

• Bill C-5 proposes to amend the Criminal Code to require judges to provide reasons for decisions under Criminal Code sexual assault provisions. This requirement is intended to enhance the transparency of judicial decisions made in sexual assault proceedings.
• The Criminal Code amendments in Bill C-5 share the same objectives as those contained in former Private Member’s Bill C-337: to assist in ensuring that decisions in sexual assault matters are not influenced by myths and stereotypes about sexual assault victims and how they behave, which the Supreme Court of Canada has found distort the truth seeking function of the court (Mills, 1999; Darrach, 2000).

Q20 What are the differences between former Bill C-337 and Bill C-5 in relation to the Criminal Code amendments?

• There are three minor differences between former Bill C-337 and Bill C-5 that were included for clarity and legal accuracy:

  1. Bill C-5 would clarify that the requirement for judges to provide reasons when making final determinations in sexual assault matters also applies to historical sexual offences;
  2. The Bill would clarify that absolute or conditional discharges only apply after a finding of guilt; and
  3. The Bill would also clarify that a finding that an accused is unfit to stand trial relates is not a determination with respect to the offence charged but a determination of the accused’s mental capacity.

Q21 Doesn’t the Criminal Code already require judges to provide reasons for their decisions in sexual assault matters?

• The Criminal Code requires judges to provide reasons in sentencing decisions (section 726.2) and the Supreme Court of Canada’s 2002 Sheppard decision requires judges to provide reasons for their decisions more generally. In sexual assault matters, the Criminal Code also requires judges to provide reasons when determining whether certain types of evidence should be admitted, such as evidence of the victim’s prior sexual activity (subsection 278.94(5)), as well as when determining whether to produce to the accused the victim’s private records that are in the possession of third parties (subsection 278.8(2)).
• Bill C-5 would complement these existing requirements by requiring judges to provide reasons for final determinations in sexual assault matters that come before the court (proposed section 278.98). This proposed amendment would be placed together with the other sexual assault provisions in Part VIII of the Criminal Code – Offences against the Person – to ensure that all provisions relating to sexual offending are clear and accessible to those applying them.

Q22 Why does the requirement to provide reasons only apply in sexual assault and child sexual assault trials?

• Bill C-5 would require judges to provide reasons for final determinations in sexual assault trials involving adult or child victims, consistent with the approach taken in the provisions that govern the admissibility of evidence of the victim’s prior sexual activity (subsection 276(1)). Like the sexual history evidence provisions, Bill C-5 is aimed at ensuring that myths and stereotypes about sexual assault victims do not influence judges’ decisions in these matters.

Q23 Why does Bill C-5 reference sexual offences that have been repealed?

• Bill C-5 would ensure that judges are required to provide reasons when making final determinations in all sexual assault matters, including those that are decided under historical sexual offences. In 1983, historical sexual offences were repealed and new sexual assault offences were enacted. Because the criminal law does not apply retroactively, historical sexual offences continue to apply where sexual offending is alleged to have occurred prior to 1983. Because delayed disclosure is common in sexual offending cases, historical sexual offences continue to be used today. Accordingly, Bill C-5 would require judges to provide reasons in all sexual offending matters, regardless of when the offending is alleged to have occurred.

Q24 Why doesn’t Bill C-5 require judges to provide reasons in writing for all sexual offending-related decisions?

• Bill C-5 would require reasons to be recorded in the record of proceedings or to be provided in writing. This approach would achieve the goal of ensuring transparency in sexual offending-related decisions, while balancing the need to ensure a timely process as required by the Supreme Court of Canada’s 2016 Jordan decision.

Q25 Why doesn’t the Bill require juries to provide reasons in cases where the accused has elected a trial by jury?

• Bill C-5 would not require juries to provide reasons because jury deliberations are secret (section 649 and the Supreme Court of Canada’s 2001 Pan decision).