Good morning, ladies and gentlemen. We are pleased to be here today for the clause-by-clause review of Bill , an act to amend the Judges Act and the Criminal Code, regarding sexual assault.
We'll begin our clause-by-clause. Pursuant to Standing Order 75(1), the consideration of the preamble and clause 1, the short title, is postponed.
(On clause 2)
The Chair: If you refer to the amendments that were sent out, you'll see that there is a Liberal-1 amendment. I want to inform the committee that if Liberal-1 is adopted, then NDP-1 cannot be moved, because there is a line conflict there. Just be aware of that.
Liberal-1 says that Bill , in clause 2, be amended by replacing line 28 on page 2 with the following:
||(i) education in sexual assault law that includes
Also, that clause 2 be amended by replacing line 32 on page 2 with the following:
||associated with sexual assault complainants, and
||(ii) social context education.
Is there discussion on the amendment?
Before we get into the specifics of the proposed amendment, which Pam will probably still want to speak to, I want to say to my colleagues around the table that this study has been an absolute pleasure to work on with everyone. I want to let you know from the beginning that we had a meeting of our caucus, and we are largely in support of this bill. We don't want to tear down any of the major provisions. I want to kick off the discussion with that sort of good-faith suggestion to let you guys know that we don't want to have a big fight about this issue. It's important that we all agree, and I think we all want to land in the same place.
Pam, I know you'll want to speak to the reason behind your amendment, so I won't step on your toes.
We've learned that Liberal-1, if adopted as is, would render null and void Sheila's amendment. Sheila, I wanted to let you know that we actually quite like where you are going with your amendment, and if there is an opportunity to collapse the piece that Pam is about to raise with what you are doing, we'd entertain that. When I read the language, I think it will simply be inserting the words “social context education” in the correct spot. I want to make sure that we do it in the correct procedural way, from the clerk's perspective.
With that, I'll hand it back over to Pam to talk about the importance of her proposed amendment.
The rationale is that we heard a number of witnesses testify that consulting women's organizations that have on-the-ground experience and experience with survivors of sexual assault...be able to formally inform the training of judges. We heard Mr. Sabourin say, “I welcome the involvement, and we want to do that at the CJC, working with NJI to involve community groups in the development” and that not consulting would be “a very bad idea”.
We also had an overwhelming number of witnesses who have experience with supporting victims of sexual assault who said that they were never consulted. Jackie Stevens, from the Avalon Sexual Assault Centre, said that they have had many experts from the community working hands-on with these issues who wanted to be involved.
Nneka MacGregor, executive director of the Women's Centre for Social Justice, said that we must include the voices of those individuals who have lived through the justice system, because it's their experience “that is actually going to change the perception and the understanding”.
We also had testimony from Marlihan Lopez, a liaison officer. She said:
|| It's very important with these types of initiatives that the groups on the ground that have the expertise be consulted. I see it over and over again. [These] groups aren't consulted, then these projects are pushed forward, and finally they don't address the realities that victims, or survivors face in sexual assault.
Finally, Jeremy Dias, executive director of the Canadian Centre for Gender and Sexual Diversity, said that civil society should not be left out of the conversation. “Step one is opening the doors so we can engage with them in having that conversation.”
The subamendment that I propose would be to formally bring those organizations in to shape on the type of sexual assault training that judges receive.
I think it needs to be said on the record that the committee heard in multiple testimonies from a range of witnesses that the judge is the final person who hears the result of the extent to which sexual assault informs every other element of the judiciary and every other element of the justice system.
We heard again and again that sexual assault training, gender-informed training, and trauma-informed training should be available to the crown prosecutors, police forces, lawyers, and the judiciary, and that in order for victims to have confidence in the justice system, they need to know they're going to be treated with dignity and respect by all participants at every level of the justice system.
I think it's important for committee members to reflect that we've heard that. The NDP proposal to amend was in that spirit. I understand that we are trying, through a private member's bill, to fix a whole lot of problems throughout a whole lot of police forces, so it's not a criticism of the drafters of the original bill, but this is a significant piece of work for which federal leadership is sorely needed. If it can't be accommodated here, then I think we all need to take some leadership in pushing to find the place where it can be accommodated, where we can make this change. Otherwise, training judges will not have the effect that we desire.
Thank you very much, Madam Chair.
There are three components, essentially, that are important here, if I can take our eyes off the language and explain them in more general terms to begin with. Two are of a technical nature, and one is substantive. The technical amendments, I expect, will be easier for this committee to deal with as a matter of course, so I'll address them first.
The first, which you'll see in part (a) of the proposed amendment, is simply to achieve a coordinating amendment. Section 159 of the Criminal Code has been deemed unconstitutional. There's a bill before the House to actually remove it from the Criminal Code. This is simply to erase from the books a zombie law that has been deemed unconstitutional. I don't anticipate that will be a problem, but I'll leave it to the members of the committee to object if they see one.
The second theme of this amendment is in new proposed subsection 278.92(5) and is also with respect to the word “judge” as opposed to “court” under part (a) under the proposed section 278.92. The reason for these proposed amendments is that, under the common law, and I believe it's enshrined in the Criminal Code as well, there's not an obligation on a jury to produce reasons. By adopting this motion, we would be potentially running afoul of legal principles that I think we have no business interfering with. I expect this is something I would not have caught had I been drafting it, but when we ran it through some extra sets of eyes, this concern was raised, and I support it entirely.
The third and perhaps trickiest amendment—we had some conversations with other members of the committee, some department officials, and our legislative clerk—might give us some problem here, but the substance of this issue is really the requirement for written reasons. We heard compelling testimony actually from Professors Elaine Craig and Jennifer Koshan. I studied under Professor Craig while I was in law school, and I appreciate the need for written reasons for two main purposes. One, the exercise that a judge goes through in preparing written reasons improves the quality of the decision. There's no question that, when you take the time to write something down, you think it through, and you're less likely to make an offhand offensive comment, and I accept that.
The second reason, in my mind, is really about the access of interested audiences. I can think of a need for access to decisions for academics, for NGOs, for the press, for the litigants, of course, for the public at large, and for lawyers dealing with sexual assault matters who want to research the jurisprudence that's currently not being reported.
The tricky part today is that, if there's not a reporter sitting in the room, oftentimes these reports aren't made public. Generally speaking, I support the requirement for written reasons. I propose an amendment that I believe is similar in spirit to the amendment proposed by Ms. Malcolmson that I'll address in a moment, but my concern about having a requirement for written reasons in 100% of cases was borne out only weeks ago in one of the communities that I represent.
In the small university town of Antigonish, Nova Scotia, we have seen what I believe is the first decision of its kind in my province of a sexual assault charge against a university professor having been stayed under the Supreme Court of Canada's Jordan decision. If we specifically require written reasons in every sexual assault case, we will be adding a procedural step and presumably some additional delay, specifically to sexual assault cases, which will lead to, presumably, more people who could or should be convicted of sexual assault getting out without ever having their matter go to trial. I expect that is not the outcome that anyone on this committee wants, and it really becomes a matter of how we address it.
Ms. Malcolmson, I initially took a shot at drafting this and had almost identical language about whether the judge considers it in the interest of justice to do so. Upon further reflection, the “interests of justice”, in my understanding, is a legal term of art that can have a specific meaning in different sections of the law. For example, if you're considering whether to allow a third-party intervenor to take part in litigation where they don't personally have an interest, there are concerns about whether they bring a new perspective, whether they have something of value to add. I have concerns that my initial thoughts as to the appropriate language, which are reflected in your proposed amendment, will lead to unintended consequences that we as a committee have not fully thought through and have heard no evidence on.
I took a shot—the best I could—at some plain language writing that would suggest that, despite the proposed subsection requiring written reasons, the “reasons for a decision need not be given in writing if the judge does not consider it practicable to do so.” This would require, in my mind, that the judge make an assessment, and they have to decide that it is not practicable for them to offer written reasons.
The real reason I wanted to include this is that of delay and the Jordan decision under the Supreme Court of Canada. I think this will allow a judge to say that if this is going to literally let an accused person go free without trial, that's unacceptable, and if judges can give an oral decision in shorter order to ensure justice is served, they will have the ability to do so.
However, to protect against the potential trend that would see judges do this as a matter of course, because they don't feel like it, I inserted proposed subsection (3) and proposed subsection (4) that says that if proposed subsection (2) applies—meaning if the judge decides they can give oral reasons—the court shall prepare a paper or electronic transcript. I've said paper or electronic now. It's not actually in this, but this is something I expect will need to be borne out in further discussion with the assistance of the clerk, of the reasons delivered orally or ensure access to an audio recording of the oral reasons. Then under proposed subsection (4), “Any written reasons given or transcript prepared under subsections (2) or (3) shall be entered into the record of proceedings”.
After a discussion we had with a departmental official and briefly with the legislative clerk, what I really hope we land on here, as someone who worked as a lawyer and relied on legal research tools in my career before politics, is an electronic site on which we can search the decisions, even if they're not officially published in the way that written decisions typically are.
We run into some serious difficulties if we require that a court develops a database, because there are constitutional concerns under the sections 91 and 92 divide that put the administration of justice squarely within the purview of the provinces. If we require the provinces to spend money on the administration of justice in federal legislation, the clause could be struck down entirely as being unconstitutional and render moot the exercise that we're going through and the purpose of this proposed amendment.
I would suggest that the language I've put forward may not be perfect, and if the chair would allow a brief suspension to discuss with members of the different caucuses represented here, the legislative clerk, and potentially, a department official with expertise on this specific matter, I think the legislation would be significantly improved.
Madam Chair, with your permission, I'd recommend we suspend for a few minutes to sort out the details.
I do have a proposed amendment, which doesn't have a fancy title like Liberal-3. However, I will provide a copy in writing once I read it for the benefit of the crowd.
Also I believe the French version is available as well, but I handed my copy to another member of the committee. Once I read the English version into the record, I'll share both copies in writing with you and then have a few questions for our department officials.
The new amendment would read that Bill , in clause 5, be amended by replacing lines 21 to 24 on page 3 with the following: “Reasons, 278.92 (1) In proceedings for an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272, or 273, the judge shall provide reasons for a decision that a person is”. As well, it would amend clause 5 by adding, after line 30 on page 3, “Record of reasons”, and this is the key part that differs from the previous iteration, “(2) The reasons shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.”
Then, similar to what we had previously, it says, “Proceedings before a judge, (3) Subsections (1) and (2), apply only in proceedings before a judge without a jury.”
Thank you, Madam Chair.
First of all, I would like to thank the honourable member for proposing that the requirement for written reasons be replaced by language that is already reflected in the Criminal Code. It is reflected in section 278.8 as well as 276.2 with regard to third party record application hearings as well as rape shield application hearings. Also, they require either written reasons, or if those written reasons are not possible, that the reasons be entered into the record of the proceedings. Therefore, they would be made available and it would be clear for the parties and anyone else who is interested in having the information about how that decision was rendered. That replies to the evidentiary provisions.
However, the proposal here would have it apply to all the sexual assault matters that are enumerated in this bill, and therefore, would expand it without requiring written reasons in every case, which, as noted, could have significant implications for the effectiveness of the administration of justice and consequently for these cases of sexual assault before the courts.
These provisions that already exist in the code have withheld constitutional scrutiny. They have been maintained.
There is a desire to remain with existing language in the standards for drafting in the code. As they have already been interpreted, it makes it easier to use the similar language within the code.
They also remain within the constitutional mandate of Parliament for criminal law and criminal procedure and do not stray into the administration of justice by specifying exactly how the reasons would then be dealt with once they are on the record. They have been made available in the application of these provisions because the courts know there is an interest in them and a specific requirement for those reasons to be transcribed and available on the record. As a result they are regularly uploaded onto CanLII, which is a free website with a database of over a million judgments and decisions from all the Canadian courts, as well as laws. That website is maintained through the Federation of Law Societies in collaboration with a private company.
Good morning, Madam Chair.
I understand the question to be on whether the amendment as proposed will achieve the goal of the committee without straying into an area that is beyond Parliament's jurisdiction. The question here is staying on the side of what criminal procedure is in these circumstances and not straying into the area of the administration of justice.
The amendment that has been proposed that reflects other wording in the Criminal Code has been upheld as constitutional. The reason is that it stays on the side of criminal procedure, which Parliament does have jurisdiction over. To make it a requirement for courts administration to publish decisions would be to stray into the area of the administration of justice. There is some very old and well-established case law from the Supreme Court that tells us that Parliament cannot require provinces to spend money within their area of legislative jurisdiction.
A relatively recent case, from 1982, which was in the context of the Criminal Code, was regarding a provision that allowed a judge to require a municipality to support a young offender while they were serving a sentence. It was struck down as unconstitutional because that was considered to be an area in the provincial jurisdiction. Parliament had no business requiring a municipality to be spending money in those circumstances.
I think the concern that has been raised here is that while we can require reasons to be provided in the record of the proceedings, and essentially that is an area of criminal procedure, the provision is saying that the record of this particular trial is not complete without a record of the reasons, whether they be oral or whether they be written.
What happens after that is within provincial jurisdiction. Certainly court files are public, and when a transcript or written reasons are available, as Ms. Blackell mentioned, there are private companies that pick them up and they are published. However, it is beyond Parliament's jurisdiction to require that to be done by the courts themselves.
You mentioned that the site is maintained by CanLII, and I want to get some clarification. Is that a public website, or is that specific to judges and lawyers only? Would anybody in Canada be able to access that?
Secondly, in looking at this, I totally understand where you're coming from, but one of my concerns is that if it comes to the provincial level—I realize there's going to have to be a balance here when we come to the Constitution—we recognize that there's access to information. That's another hurdle.
We do not want to put in any hurdles, whether for our media or our victims, whoever it may be, with another cost. These can be very expensive things as well. We want to make sure that this is easily accessible and at very little cost, if any cost whatsoever.
First of all, could you comment on CanLII and let me know about that? That may be the best opportunity or the best situation we have, and you could continue from there.
Thank you very much. I sincerely appreciate your advice and information.
To address Ms. Vecchio's issue regarding the cost, I understand that the cost of an actual transcript is in the range of seven cents a word. I think the likely solution is that at the provincial level, the folks making the decision on the mode of making accessible these decisions will likely get with the times and use an electronic version, I would hope. I think that would be preferred.
I would suggest it would be appropriate for this committee, if this amendment is adopted, to write to our provincial counterparts, or different bodies that we identify—it doesn't have to take place in this meeting—and recommend strongly that they make these available online so anyone with an Internet connection can access the decisions that currently might be recorded but not reported.
I think we'd be on safe ground to make that recommendation, as long as we're not trying to do it through the criminal law power and usurp provincial jurisdiction.
With that, I think I'm pleased to move to a vote, unless there's further discussion on the amendment.
With that in mind, shall clause 6 carry?
(Clause 6 negatived)
The Chair: We return to our regularly scheduled program. I think the title is where we were.
Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chair: Shall I report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: Shall the committee order a reprint of the bill?
Some hon. members: Agreed.
The Chair: We will try to bring this back to the House as soon as we can, tomorrow if possible, otherwise Monday.
We have some additional time, so while I have your attention, I want to tell you some exciting things that have been shared from the LIAI committee about upgrades to committee business in terms of social media.
In addition to the Library of Parliament providing reports, instead of the usual black reports that have the seal at the top that are incredibly visually stimulating, it will be able to put up to three pictures and a colour band on our reports, so that is quite exciting.
The Library of Parliament will also be introducing Twitter announcements for committees. It will tweet out when committees are meeting. It will tweet out when there is a press release, and it will tweet out when there is a call for submissions. We are able to ask the Library to tweet anything else out, and we may retweet and they will use #FEWO as the tracker for that, so you will see that rolled out.
The other thing that's new is that the parliamentary website is going to be updated. It will have a much better visual display and accessibility will be very good. I don't know if you've had some difficulty trying to find things on the committee web pages, but the Library has made it friendlier and searchable. I saw those updates yesterday, and the Library will send us a presentation that I will send along to you, but I wanted you to be aware that the Library is thinking about moving into the next century.
I've also told the Library that seven million people use Twitter and 22 million Canadians use Facebook, so I've encouraged the Library to get on Facebook, and move our committees in that direction as well.
Thank you to our wonderful committee today for your co-operation. We've achieved an outcome here that was a recommendation from our report “Taking Action To End Violence Against Young Women and Girls in Canada”, and it is a good outcome.
The meeting is adjourned.