Second reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code

By: The Hon. Pierre Dalphond

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Women Are Persons Monument, Ottawa

Hon. Pierre J. Dalphond moved second reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code.

He said: Honourable senators, I’m pleased to open debate at second reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code. I’m not actually sure why I was chosen.

Let me give you a little background on this bill before moving on to analysis.

This bill was introduced in 2017 by the Honourable Rona Ambrose when she was interim leader of the Conservative Party of Canada in the House of Commons. She saw it as a way to restore the confidence of victims of sexual assault, mainly women, in the Canadian justice system, because that confidence had been eroded by unacceptable comments on the part of certain judges in cases that then received a lot of media attention.

By “unacceptable comments,” I mean comments that indicate stereotypes, prejudices or a poor understanding of sexual assault law.

These harmful myths and stereotypes include the following: that women who choose to go home with a man are necessarily consenting to sexual activity; that women who dress provocatively or are flirtatious are asking for it, even when they say no; that women who do not resist are consenting; that women cry rape after a consensual sexual encounter that they later regret; and that women who have consented to sexual activity also consent to subsequent sexual activity.

Prior to 1983, when Canada overhauled its laws on sexual offences, these myths not only infiltrated our courtrooms, they informed the very laws that governed sexual offences and, in some cases, even constituted rules of law. For example, a woman had to raise a hue and cry immediately after an alleged sexual assault if they were to be believed, a woman’s allegation of sexual assault had to be corroborated if they were to be believed, and a sexually active woman was considered to have been more likely to consent to sexual activity, even if unsolicited. When the existing sections 274, 275 and 277 of the Criminal Code were enacted in 1983, all of these rules had to be specifically abrogated, but this did not mean that they were automatically erased from the brains of all counsel, police officers or even judges across Canada.

The 1983 amendments, together with reforms that were enacted in the 1990s and most recently in 2018 through former Bill C-51, have responded to many persistent myths and stereotypes. We now have an affirmative consent sexual assault model in place in Canada, an approach that is respected around the world as one of the most robust responses to this type of crime. Now most Canadians should know that “no” always means no, and a lack of consent always means no.

Bill C-51 also made clear that advanced consent to sexual activity is not valid and that consent must be continued and remain present throughout the sexual activity. Sexual activity cannot be engaged in or continued with a person who is momentarily unconscious or unable to give consent for whatever reason.

Finally, Bill C-51 strengthened existing procedural rules that protect victims of sexual offences from having certain types of evidence about them used to impugn their credibility, such as questions about previous sexual partners or activity.

Yet, despite this strong legal framework and clear guidance from time to time from the Supreme Court of Canada, we still see these same myths and stereotypes influencing court decisions.

It should also be noted that victims do not always find a sympathetic ear in police stations, where allegations of sexual assault must be reported. In the 2014 General Social Survey on Victimization in Canada conducted by Statistics Canada, victims of sexual assault reported a lower level of trust in the police than the general population.

On top of that, we have a justice system that appears slow and complex, one in which, some people would say, defendants are treated better than victims. Victims also criticize the lack of support in the process.

Finally, in most cases involving sexual offences there are no witnesses, and the outcome of the judicial process often depends on an assessment of the credibility of the person who made the complaint. This can be viewed as the trial of the victim, rather than the accused, who has a right to silence, and as a form of “revictimization” of the person who made the complaint.

This mixture of facts and perceptions regarding the justice system no doubt deters many victims from going to the police and resorting to the courts.

Also according to the 2014 General Social Survey, only 5% of sexual assaults are reported to the police. The most frequently cited reasons for not reporting a sexual assault include fear of not being believed, shame, embarrassment, not knowing that it could be reported and a lack of family support.

That explains, in part, the #MeToo movement on social media, where a person can generally speak out against an attacker without risk. However, this type of popular justice does not offer any guarantees in terms of getting to the truth, since it is not required to meet the burden of proof. It is in that context that the Ambrose bill was introduced in the other place. At committee stage, the Standing Committee on the Status of Women proposed some amendments, the most important of which was the addition of social context as an element that should be part of the training provided to judges, in addition to training on sexual offences. In May 2017, the bill passed unanimously at third reading in the House of Commons. Every political party saw this bill as a way to prevent certain missteps during trials. Judging by the MPs’ comments, they knew that the Ambrose bill was just a step, important, yes, but not enough to encourage the victims.

When the Ambrose bill arrived in the Senate on May 16, 2017, it did not benefit from the order of precedence and the procedural advantages reserved for government bills. It therefore moved slowly at second reading stage, which lasted a year. The debates from that time show that senators, many of whom are no longer here with us today, were concerned about various aspects of the bill that they considered to be excessive or inconsistent with the principle of the institutional independence of the courts.

In Canada, we are extremely lucky to have a robust and independent judiciary. A core constitutional principle underlying our democracy, judicial independence means that our judges need to be free to decide each matter on its own merits and that courts should manage their affairs without external influence. Judges must not be subject to interference or influence of any kind.

Particularly relevant to our discussion today, judicial independence requires that the judiciary retain control over the management of its affairs, including the discipline and training of its judges.

The bill was finally sent to the Standing Committee on Legal and Constitutional Affairs on May 31, 2018, where it patiently sat for a full 12 months before being examined. The committee heard from many witnesses, including the Honourable Rona Ambrose, as well as representatives from the National Judicial Institute and various academics. Thanks to the collaboration of many people, including the sponsor of the bill, former Senator Andreychuk, and former Senators Joyal and Pratte, the committee members unanimously agreed to amend the preamble and content of the bill.

Unfortunately, despite my many attempts, I wasn’t able to get this bill read the third time before the end of the previous Parliament in June 2019.

Support from members of Parliament for the bill did not waver, however, and the parties promised to get right back to it after the election.

On February 5, 2020, the Minister of Justice, the Honourable David Lametti, introduced a government bill in the House of Commons, which took over Ambrose’s bill as amended by the Standing Senate Committee on Legal and Constitutional Affairs.

This bill was quickly sent before the House of Commons Standing Committee on Justice and Human Rights, which heard from representatives of the judiciary, bar associations and organizations that provide support to sexual assault survivors. Then the pandemic hit, interrupting the work of the committee before it could submit its report. Parliament then prorogued in August 2020, and that was the end of the second attempt.

On September 25, 2020, Minister Lametti introduced the bill again. This third attempt resulted in a short examination in committee with no witnesses other than those who had testified during the previous session and whose testimony was resubmitted to the committee. This new committee made several changes, the most important of which was to specify that “social context” includes systemic racism and systemic discrimination.

The House of Commons once again unanimously passed Bill C-3, which is now before the Senate.

Honourable senators, that is the background of the bill that is before you.

I will now turn to the content of the bill.

The Ambrose bill provided that any prospective appointee to a federally appointed provincial superior court was required to have completed an up-to-date and comprehensive course on sexual assault law and social context prior to their appointment. In short, it was a condition that had to be met before submitting one’s application, which implied the availability of suitable courses given by law societies or other organizations and the ability of the Commissioner for Federal Judicial Affairs to evaluate the completion of that training material.

It also created a number of obligations for the Canadian Judicial Council, an entity created by the Judges Act that is made up of chief justices and associate chief justices of the Canadian superior courts and courts of appeal, including federal courts. The council receives no less than $30 million per year from Parliament for its operations.

Among other things, the council would have been required to report annually on the number of sexual assault cases heard by judges across the country who had never participated in training on the subject. That clearly constituted interference in the management of the courts.

Lastly, the Ambrose bill told the council what the judges’ training would have to cover and set out which groups would be required to participate in developing the course content.

All these elements were overreaching and compromised judicial independence. Fortunately, the Standing Senate Committee on Legal and Constitutional Affairs addressed them. That said, like the Ambrose bill, Bill C-3 is aimed at the important fundamental objective of ensuring that survivors of sexual assault trust the criminal judicial system and that decisions in sexual assault proceedings will be rendered according to the law and the facts without resorting, consciously or not, to stereotypes, myths and bias.

To this end, the bill will amend the Criminal Code to require all judges to explain in their rulings the reasons why a person is acquitted, found guilty, discharged after having been found guilty, found not criminally responsible on account of a mental disorder or found unfit to stand trial. This will allow the complainant, the accused, the litigants, the media and the appellate courts to fully understand the reasoning of the deciding judge, including the reasons that led to the conclusion that he or she reached to ensure that it is not only a legally sound conclusion but also devoid of bias, stereotypes and myths.

The duty of transparency is important in maintaining confidence in the justice system. However, I would add that the duty to provide the judge’s reasons reduces the risk of error and the likelihood of an appeal and retrial, which will require the complainant to testify again and relive traumatic events.

In sum, when Canadians interact with our courts, they should be confident that they will be treated with dignity, respect and understanding. Survivors of sexual assault should be able to trust that the facts will be considered without bias or through the lens of stereotypes, that the law in this area will be carefully and properly applied and that they will have access to the reasons for the decisions in their case. That is what the Bill C-3 amendments to the Criminal Code, applicable to all provincially or federally appointed judges across Canada, will achieve. They will increase trust and confidence in our justice system, improve transparency and make our courts more responsive and inclusive of all Canadians.

We also need to help the courts do things properly the first time. It’s clear that making amendments to the Criminal Code is not enough. We have to make sure that judges, lawyers and police officers understand them properly and have a solid understanding of sexual assault law, of the impact of sexual crimes on the victims and of the social context in which these crimes take place.

That’s why the bill also sets out to provide the best possible training to federally appointed judges. As such, the bill amends the Judges Act, which governs the judicial appointment process for provincial superior courts, compensation and other benefits for all federally appointed judges, training and discipline.

The bill would amend the Judges Act to limit the eligibility for appointment to provincial superior courts to individuals who agree that, if appointed, they will participate in training on sexual assault law and social context. This measure will ensure that each judge, newly appointed to a provincial superior court, starts their judicial career with this critical training.

The bill invites the Canadian Judicial Council to organize training on laws pertaining to sexual assault, after consulting with individuals, groups or organizations that the council deems appropriate, such as sexual assault survivors and the groups and agencies that support them, and then provide courses to every judge, new and experienced alike.

It should be noted that the council designs these courses in practice with the assistance of the National Judicial Institute, an independent, not-for-profit agency headed by judges that is the primary provider of education for judges in Canada. Thanks to the dedication and efforts of the council and the National Judicial Institute, Canada is a world leader in judicial education.

Bill C-3 focuses on two particular areas of judicial education: training in matters related to sexual assault law and training related to social context, including systemic racism and systemic discrimination.

As I said earlier, when speaking about the legislative background of the bill, the law relating to sexual offences has been amended often since 1983. Various amendments were made in view of protecting complainants against discriminatory or unfair rules and practices by eliminating intrusive and irrelevant lines of questioning, limiting searches of the complainant’s medical and other files, defining consent and so on.

Unfortunately, as a result, some provisions of the Criminal Code have been made longer and more complex, increasing the risk of mistakes by counsel and judges. To reduce the risk of error in law, the bill invites the Canadian Judicial Council to provide more training in laws pertaining to sexual offences and invites the judges to take advantage of these courses. Each year, approximately $6 million of the $30 million provided to the council by taxpayers are dedicated to the training of judges.

On the topic of social context, every individual exists in a social context made up of various factors that intersect to impact the individual’s experiences, reality and perception of the world. These include poverty, gender identity, disability or historical mistreatment, such as that experienced by Indigenous peoples. Social context education addresses all of these issues, both singularly and through their intersection, and it is designed to teach awareness and skills for judges to ensure that all people are treated with dignity and respect and, most importantly, that they are treated equally before the courts.

Systemic racism and systemic discrimination can impact on an individual’s access to employment, public housing, economic opportunity and the delivery of public services, such as health care and justice. For many people, particularly Indigenous peoples, as well as Black and racialized Canadians, systemic racism and systemic discrimination are lived realities in the justice systems and far beyond, as was highlighted last June during our emergency debate on systemic racism.

Canada has strong legal and policy frameworks in place to address systemic racism and systemic discrimination. This framework includes the Canadian Charter of Rights and Freedoms, federal and provincial human rights statutes and codes, the Criminal Code and the Canadian Multiculturalism Act, as well as other legislation. Section 15 of the Charter, for example, prohibits discrimination by all levels of government. The Canadian Multiculturalism Act recognizes and promotes the cultural, racial and religious diversity of Canadian society and acknowledges the freedom of all members of Canadian society to preserve, enhance and share their cultural and religious heritages. The Criminal Code requires judges to consider for the purposes of sentencing whether a crime committed was motivated by bias, prejudice or hate.

These are useful tools in combatting systemic racism and discrimination. Yet, for these tools to be effective, they need to be properly understood and applied by a justice system that is aware of social contexts, including the social context of the judge, and responsive to the experiences of each individual who interacts with the courts.

Bill C-3’s requirement for judicial education on social context is part of the efforts made to address these issues. The inclusion of systemic racism and systemic discrimination in the definition of social context education is intended to highlight the importance that Parliament places on ensuring its pernicious and destructive impact is recognized and addressed.

Going to court can be stressful and challenging. When Canadians interact with our courts, they should not bear the increased stress of confronting harmful myths and stereotypes. Nor should they face a system that lacks awareness of their social context, including the ways systemic racism and systemic discrimination may impact their lives. Social context training for judges aims to develop the skills and awareness that judges need to ensure that everyone who interacts with the courts is met with a responsive, respectful and inclusive justice system.

In addition to in-court interactions, social context training is relevant to judicial decisions. Personal or societal biases, myths and stereotypes have no place in judicial decision making. Training in social context will continue to provide — as it does already, but will be strengthened and thus provide even more to judges — the knowledge and the tools they need to ensure that decisions are free from these inappropriate considerations.

During their careers on the bench, judges interact with individuals who highlight the richness of Canada’s diversity. Social context training provides judges with the skills, knowledge and awareness to help them ensure that courtrooms are welcoming of this diversity and responsive to it. Bill C-3’s social context training requirement assures Canadians that their newly appointed Superior Court judges and long-serving judges will receive and will be provided access to proper training and tools to do their important job.

Some have concerns about amending the Judges Act in relation to this judicial training. I think they are wrong. Bill C-3, in its current form, fully respects the independence of the judiciary. It was carefully designed to strike a balance between the need to enhance public confidence in our justice system and the need to allow the judiciary to retain control over judicial education.

The obligation imposed on judicial candidates does not apply to sitting judges. Rather, it is an additional condition of employment for the desired position, which is intended to help incumbents better serve Canadian litigants and defendants.

The invitation to the Judicial Council to ensure that training is offered to all judges is nothing new. The judiciary has long understood that continuing education is a preferred tool. Judicial office requires not only good training and the ability to listen and empathize, but also, as with all other professions, the duty to keep up to date and hone one’s skills.

The Canadian Judicial Council’s Ethical Principles for Judges written for federally appointed judges states the following, and I quote:

Sustained efforts to maintain and enhance the knowledge, skills and attitudes necessary for effective judging are important elements of judicial diligence. This involves participation in continuing education programs as well as private study.

This document also mentions the following obligation:

. . . make every effort to recognize [attitudes based on stereotype, myth or prejudice], demonstrate sensitivity to and correct such attitudes.

Parliament is merely supporting the efforts of the Canadian Judicial Council and is urging it to continue on this path.

This has led some to say that this does not need to be addressed in the legislation because it is already part of the reality of judges. However, I ask you, what harm is there in Parliament — which authorizes funding for judges’ training — pointing out to the Canadian Judicial Council and to all judges how important this issue is for Canadians?

In reality, Parliament has just as much interest as the Canadian Judicial Council does in encouraging the continuing education of judges. This will maintain and even increase the confidence of citizens in the courts, which are important elements of our country’s system of governance without which a true democracy cannot exist.

Finally, through a further amendment to the Judges Act, this bill invites the council to submit annual reports to the Minister of Justice on the social context and sexual assault law seminars and courses provided in the previous year. These reports would include a description of the content covered in each seminar or course and the number of judges in attendance. Upon receipt of such reports, the Justice Minister will be required to table it before each chamber of Parliament.

It is important to note that this invitation for the Canadian Judicial Council to submit an annual report, a copy of which will be tabled in both chambers, to the Minister of Justice is not an obligation, but a suggestion. This is made clear by the wording chosen in the bill, as amended by the House of Commons.

However, this report is a way to promote transparency within the council, an organization created by an act of Parliament and entirely funded by an annual budget from Parliament.

I remind senators that the council’s annual budget is $30 million, $6 million of which is allocated to judicial education. Furthermore, in the 2019 budget, Parliament authorized the government to increase the amount allocated to judicial education by $5 million over the following 10 years.

Judicial independence is essential, but does not justify a lack of accountability for the use of public money. I should point out that judges’ expenses and fees are now disclosed every quarter.

What is more, it is only natural that the council explain to Canadians its purpose and objectives and let them know about all of the courses that it offers to judges in order to give Canadian the best justice services possible. This is not just a matter of transparency, which is always necessary when it comes to the use of public funds. I also see it as an opportunity for the judiciary, which has a duty of restraint, to share with the public, on a yearly basis, information that will likely increase Canadians’ confidence in our justice system. This is not so much an obligation as a platform for the judiciary.

Finally, I would like to reiterate the fact that the House of Commons Standing Committee on Justice and Human Rights changed the wording of the act to emphasize that this is not something that the Judicial Council is being ordered to do, but rather an invitation to provide information. That was done in order to show that Parliament respects the independence of the courts and the administration of justice, as indicated in the preamble of the bill, which reads as follows:

Whereas Parliament recognizes the importance of an independent judiciary;

In closing, honourable senators, I am pleased that the important work that the Senate did in 2019 was incorporated into this bill. The Senate has once again demonstrated its usefulness as a chamber of sober second thought and the guardian of the key principles set out in our Constitution, particularly the principle of the separation of powers and the necessary independence of judges and courts.

Honourable senators, it is long overdue that the legislative story of this bill gets its happy ending and Parliament adopts this bill designed to enhance the trust survivors of sexual assault have in the judicial system. It would acknowledge that they deserve to be treated by judges that know the law very well and are able to guard themselves against myths, bias and stereotypes while deciding sexual offence cases.

Thank you. Meegwetch.

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