Third 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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Hon. Pierre J. Dalphond : Honourable senators, I hope that this third reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code, will be the culmination of the tireless efforts of the Honourable Rona Ambrose, the former interim leader of the Conservative Party of Canada, who began work on this issue back in February 2017. I also hope that this will reflect the amendments made by the House of Commons Standing Committee on the Status of Women in May 2017, the amendments made by the Standing Senate Committee on Legal and Constitutional Affairs in June 2019 and, lastly, the most recent amendments by the House of Commons Standing Committee on Justice and Human Rights in October 2020.

I remind senators that there was unanimous support among members of Parliament for the principle of this bill during the last Parliament and again during this session. Although this bill is an important one, it contains just four measures. First, it requires that candidates nominated for a provincial superior court, not a federal one, commit that, if appointed, they will take training on sexual assault and social issues, including systemic racism and discrimination.

Second, it urges the Canadian Judicial Council to provide training on these topics after consulting with survivors of sexual assault and the organizations that support them, including Indigenous leaders and other resources the council considers appropriate. Third, it requires that the council report to Parliament, through the Minister of Justice, on judges’ participation in this training.

Finally, it amends the Criminal Code to require that all judges, whether appointed by the provinces or the federal government, explain their decisions in sexual assault proceedings.

Taken together, these measures seek to bolster public confidence, particularly among survivors of sexual assault, in our justice system’s ability to treat all individuals fairly and to handle sexual assault matters in a respectful manner, free of myths and bias, should their case be brought before a judge.

Bolstering public confidence, and in particular the confidence of sexual assault survivors, in our criminal system is not a simple task. It requires better education of police officers, Crown attorneys and all other actors involved in the handling of sexual assault allegations and any charges that may follow.

Harmful myths and stereotypes about victims of sexual assault are still very present in our society, including the following: that women who choose to go home with a man are necessarily consenting to sexual activity; that women who dress provocatively are “asking for it;” 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 prior sexual activity also consent to subsequent sexual activity.

There are also myths and stereotypes specific to some groups that add to these stereotypes. Before the committee, Viviane Michel of Quebec Native Women explained:

Indigenous women are subject to many forms of discrimination, including on the basis of race, sex, sexual orientation and gender. As everyone here knows, the current systemic discrimination is rooted in colonialism, a gendered process that has resulted in many insidious stereotypes for Indigenous women.

These stereotypes stem from the European view of Indigenous women as “savages,” shameless, prostitutes, bad mothers, ugly and lacking in feelings or morals. . . .

Not only is the reliance on myths and stereotypes detrimental to the public confidence in the justice system, but when said myths and stereotypes are a part of a judge’s mindset, they distort the truth-seeking function of the trial process. As the Supreme Court of Canada noted in 2019 in a case called R. v. Goldfinch:

Our system of justice strives to protect the ability of triers of fact to get at the truth. In cases of sexual assault, evidence of a complainant’s prior sexual history — if relied upon to suggest that the complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief — undermines this truth-seeking function and threatens the equality, privacy and security rights of complainants.

The Supreme Court further noted:

In 1992, Parliament enacted section 276 of the Criminal Code . . . to protect trials from these harms. Nearly 30 years later, the investigation and prosecution of sexual assault continues to be plagued by myths. . . .

Moreover, the improper application of the complex sexual assault law adds to these factors and deters victims from reporting sexual assault.

Sexual assault continues to be the most under-reported crime in Canada. According to Statistics Canada’s latest General Social Survey on victimization, only 5% of sexual assaults were reported to police that year, compared to 37% for physical assault and 46% for robbery. In other words, sexual assault is not only a violent crime, but it is also one that is under-reported.

Statistic Canada’s 2018 Survey of Safety in Public and Private Spaces shows that one in five victims of sexual assault experiences victim-blaming. This is one of the key contributors to victims’ under-reporting of sexual assault to police. In addition to the internalization of shame, guilt or stigma, the perception that they will be blamed, revictimized, dismissed, not believed or treated disrespectfully is not helping. The broader sense of societal normalization of inappropriate or unwanted sexual behaviour is also very negative.

In a 2017 Statistics Canada report, nearly half of the victims of sexual assault who did not report the crime to the police cited reasons related to the “hassle, burden or belief that they would not see a positive outcome in the justice system.”

Statistics show that victims who decide to report a sexual assault to the police face a complex process. The accused is identified in just three out of five cases. Less than 43% of sexual assaults reported to the police resulted in charges being laid, compared to 75% of alleged physical assaults. This means that prosecutors were not certain they could get a conviction. Of the cases that led to charges being laid, only half proceeded to court for a judge to decide if the accused was guilty or not. This can happen because the victim drops the charge, because the accused is a friend or family member, or for other reasons, such as the discovery of new facts or the death of the accused. Ultimately, of incidents retained in the justice system, just over half, 55%, led to a conviction, compared to 59% in physical assault cases.

However, it is important to note that, when the accused is found guilty, the justice system is more likely to impose a custody sentence, which happened in 56% of sexual assault cases compared to 36% of physical assault cases. That is probably because only the most serious sexual assault cases proceed to court.

Despite the many barriers to the reporting of sexual assaults, I note that the number of cases reported to the police markedly increased in the midst of the #MeToo movement that went viral on or around October 15, 2017. According to Statistics Canada, there were 23,834 victims of founded sexual assaults in 2017, a 13% increase from 2016. This is a good sign; more people are reporting. While this is certainly a positive side of the #MeToo movement, we must also acknowledge that the movement was born either in part or in whole out of public dissatisfaction, particularly among women, with the perceived ineffectiveness of the judicial system.

The Expert Committee on Support for Victims of Sexual Assault and Domestic Violence indicated the following in a report presented to the Quebec National Assembly on December 15, and I quote:

The #MeToo movement speaks out against a culture of complacency toward sexual violence. It has demonstrated in dramatic fashion just how widespread sexual violence is in every community and social class and that it is too often tolerated or trivialized.

Although the relationship between the #MeToo movement and the traditional justice system has not yet been the subject of an in-depth analysis, the movement is clearly the product of frustration with judicial institutions and their perceived ineffectiveness. . . . That being said, the #MeToo movement can also not be reduced to a criticism of the justice system. Those who choose to speak out via social media rather than in a traditional judicial forum do not do so only because they lack confidence in traditional institutions. Often, they are looking for something else, such as a community, an empathetic ear or social change.

Although the #MeToo movement cannot be reduced to a simple criticism of the justice system, the fact remains that the movement did shed some light on many of the system’s shortcomings.

Although judicial training is important, it is not a cure-all that will correct all of those shortcomings and address all of the complaints of sexual assault victims. In its 190 recommendations, the Quebec expert committee indicated that there is a need for the following: additional resources to provide better psychosocial and judicial support for victims; funding for victims assistance organizations; the harmonization of police practices; the development of culturally relevant services; the offer of a restorative justice process for adult Indigenous victims; and the offer of free legal advice, regardless of the victim’s income.

That said, judicial training is part of the solution to bolster public confidence in the justice system. As the Canadian Judicial Council noted in a press release distributed at the conclusion of its annual spring meeting, very recently, on April 9, 2021:

Judicial education is critical to public confidence in the administration of justice. The council works diligently to ensure that federally appointed judges have access to, and participate in relevant and high quality judicial education programs. The council recognizes the public’s expectations surrounding judicial education, and in particular, the evolving realities with regard to sexual assault law, unconscious bias and systemic discrimination.

Given the council’s strong commitment to judicial training, it may be tempting to conclude that legislative interventions on the matter are superfluous. To that I say: Is it so wrong for Parliament to stress the importance of judicial education to all Canadians when Parliament ultimately funds that education? Maintaining public trust in the justice system, a cornerstone in any democracy, matters to Parliament as much as it does to the judiciary.

Moreover, as the Honourable Adèle Kent of the National Judicial Institute explained before the senatorial committee:

. . . since 2017, when Ms. Ambrose introduced Bill C-337, the dialogue between the judiciary, the legislature and the dialogue that we have had with representatives of victims’ groups and so on has been valuable.

Although I appreciate Mr. Calarco’s —

 — from the Canadian Bar Association —

 — comments with respect to the need for the judiciary to remain independent, I also value the kind of dialogue that we have had in the last four years.

Bill C-3, in its preamble, affirms the need for survivors of sexual violence to have faith in the criminal justice system, and Parliament’s responsibility to ensure that Canada’s democratic institutions reflect the values and principles of Canadians and respond to their needs and concerns. The preamble also acknowledges the importance of an independent judiciary.

We are extremely lucky as Canadians to have a robust and independent judiciary. A core constitutional principle underlying all modern democracies, 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 any external influence. Judges must not be subject to interference or influence of any kind. Particularly relevant to our discussions today, judicial independence requires that the judiciary retains control over the management of its affairs, including the discipline and training of judges. This ensures that judges are neither, nor perceived to be, subject to undue influence in their decision-making process.

These considerations guided the analysis and redrafting of the bill by the Senate, the House of Commons and the government.

The first version of the JUST Act 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.

It also set out a number of new obligations for the Canadian Judicial Council, an entity created by the Judges Act and composed of the Chief Justices and associate Chief Justices of each of Canada’s Superior Courts.

Among these obligations was the annual reporting on the number of sexual assault cases brought before judges who had never participated in sexual assault training. This was a clear form of interference with court management.

Finally, the JUST Act dictated to the council the content of the judicial education, including who was to be involved in the design of seminars and conferences.

Each of these elements was compromising judicial independence and they were addressed by amendments made by the Senate Committee on Legal and Constitutional Affairs in June 2019, and incorporated in the subsequent government bill before us now. As Mr. Niemi put it before the senatorial committee, the bill, as is, does not raise

 . . . an issue of overlap or threat to judicial independence; we see the training of judges on issues of sexual violence, systemic discrimination and racism as a way to elevate the knowledge of judges and make the judiciary more relevant to society and especially to those most in need of justice.

In the fall of 2020, at the Standing Committee on Justice and Human Rights, thanks to the efforts of the Bloc Québécois, the bill was further amended to avoid any interpretation that it might constitute interference in judicial matters. Thus, we replaced the term “shall” by “should” with regard to the reports to submit to Parliament and to the consultants who design the training courses. Thus, the obligation became an invitation, with respect, I remind the chamber, to activities financed by Parliament, which has the right to make suggestions and to see some form of accountability for the use of public funds.

That said, as with the Ambrose bill, Bill C-3 is fundamentally about making sure that the victims of sexual assault have confidence in the criminal justice system and that rulings on sexual assault are made under the law and based on facts, without the influence of stereotypes, myths or prejudices, for every judge, not only the ones appointed by the federal government.

To that end, the bill amends the Criminal Code to require that judges provide reasons for decisions in sexual assault proceedings. These reasons must be entered into the record of the proceedings or included in the ruling. This ensures greater transparency in the judicial process, while allowing the complainant, the accused, litigants, the media and appeal courts to fully understand the trial judge’s reasoning. It also ensures that the reasons are not only sound in law, but also free of bias, stereotypes and myths.

The duty of transparency is crucial to maintaining public confidence. I would add that the duty to provide reasons reduces the risk of error and can sometimes bring out, for the individuals writing, any prejudices that may have unconsciously guided them. This can all help reduce the likelihood of an appeal and retrial, which would require the complainant to testify again, often publicly, and relive traumatic events.

I would also like to clarify that the requirement to provide reasons, as envisioned in Bill C-3, is a form of codification of the Supreme Court’s 2002 decision in R v. Sheppard in which the court emphasized the importance of providing reasons, in particular to facilitate the appellate review of convictions and acquittals.

The appeal process allows unfortunate mistakes to be corrected, like the ones often reported in the media. We saw that with the Supreme Court, which has intervened a number of times over the past few years to reiterate the potential adverse effects of using myths, prejudice and stereotypes when it comes to sexual assault. There is still a lot of work to do.

The Supreme Court in R v. Slatter, which involved a young woman with a developmental disability who was assaulted by her neighbour for several years, noted once again in these terms the importance of questioning myths:

We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence. Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.

Although such situations may be identified and addressed through the appeals process, that is not the best response. The best response is a ruling that is not influenced by prejudices and myths. We must therefore ensure that all judges understand the law as it relates to sexual assault, the impact of sexual offences on victims and the social context surrounding the parties in a case. The judges must be cautioned about the prejudices and myths that they, as members of society, may be aware of, and even share, without realizing it.

This is why Bill C-3 proposes to amend the Judges Act to limit eligibility for appointment to provincial superior courts to individuals who agree to participate, if appointed, in training on sexual assault law and social context. This measure will ensure that each newly appointed judge to a provincial superior court starts their judicial career with this critical training and, hopefully, way of thinking.

The bill calls on the Canadian Judicial Council to design the seminars on sexual assault law in consultation with persons, groups or organizations the council considers appropriate, such as sexual assault survivors and persons, groups and organizations that support them. This is important.

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

Since 1983, the Criminal Code has been amended multiple times with a view to providing better safeguards for complainants’ rights and dignity, which has had the effect of making some provisions longer and more complex. This increases 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 about sexual offences law and for new and sitting judges to take advantage of these courses.

As for training in social context, the requirement was first added to the bill in May 2017 by the House of Commons Standing Committee on the Status of Women to ensure judges receive training on the intersectional factors that may contribute to the victimization or criminalization of individuals. These include factors such as gender, race, indigeneity, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age and socio-economic background.

Social context education is meant to provide awareness of the realities of individuals who appear in court and how these realities may shape personal or societal biases, myths and stereotypes. Full consideration of the social context is needed to understand that crimes, particularly sexual assaults, impact individuals differently, depending on their social context. It is also important to better understand the realities of all persons who appear before a court, whether it is in a matter of domestic violence, a divorce case or a claim for unjust dismissal.

In the fall of 2020, Bill C-3 was further amended by the House of Commons Standing Committee on Justice and Human Rights to specify that social context includes systemic racism and systemic discrimination.

I would like to briefly talk about the difference between “systemic racism” and “systemic discrimination.” If the amendment presented in the House of Commons was meant to emphasize the issue of racism, the terms “systemic racism” and “systemic discrimination” are two completely different, yet closely connected, concepts. As Fo Niemi, from the Centre for Research-Action on Race Relations, said in his testimony before a Senate committee:

Systemic discrimination is of course a form of discrimination that applies to all grounds. . . .

Systemic discrimination is at its root a subtle form of institutionalized discrimination. When we talk about systemic racism, we add the dimension of race to the concept of discrimination; it is systemic racial discrimination or systemic racism. . . .

The notion of systemic discrimination is very well recognized; the Quebec Pay Equity Act, in its first section, talks about systemic pay discrimination against women, and explicitly refers to “systemic discrimination.”

Focusing on discrimination based on race, I noted that the Supreme Court has repeatedly recognized its relevance in deciding cases. Most recently in the 2019 case of R. v. Le, the Supreme Court stated:

At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police.

The Supreme Court added:

We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities. . . . Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused. When three officers entered a small, private backyard, without warrant, consent, or warning, late at night, to ask questions of five racialized young men in a Toronto housing co-operative, these young men would have felt compelled to remain, answer and comply.

Despite the Supreme Court’s teaching on the relevance of the racialized context in some cases, we heard at committee that lawyers and parties sometimes hesitate to raise the issue in court because of the perceived or very real judicial discomfort around the issue. Indeed, before the committee, Mr. Fo Niemi added:

I think the issue of sensitivity also raises what is called judicial discomfort with issues of racism from time to time. When we talk about systemic racism and racial profiling, sometimes we notice a certain rather uncomfortable and sometimes hostile reaction from some members of the judiciary, to the point where we sometimes say to each other among lawyers that it would be better not to raise these racial dimensions, for example, in criminal proceedings with respect to the defence.

Bill C-3’s clarification that “social context” includes systemic racism and systemic discrimination will contribute to enhancing public confidence, particularly among Indigenous peoples and members of racialized communities, in the justice system’s ability to deal with these sensitive topics in a respectful and open-minded manner when they submit to justice.

As to the concept of social context more broadly taken, it is not foreign to the Canadian Judicial Council or the courts. In 1994, the council passed a unanimous resolution approving the concept of “comprehensive, in-depth, credible” programs on social context issues, which incudes race and gender. Social context training has been available to judges since then. This bill encourages that training to continue and even provides for more.

In their Professional Development Policies and Guidelines, updated in September 2018, the CJC notes:

Professional development also includes awareness of the social context within which judges perform their role. Judges must ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. This requires awareness and knowledge of the realities of individuals who appear in court, including an understanding of circumstances related to gender, race, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age, socio-economic background, children and family violence. . . .

Each judge’s professional development should incorporate the three-dimensional approach recognized by Council and referenced above, which encompasses substantive content, skills development and social context awareness.

In short, the social context education referred to in this bill is already something that judges are invited to do, and we’re not imposing different thinking on the courts or adapting or changing the way they teach judges. We are supporting and encouraging them to continue and go further.

This is particularly relevant in the context of cases that raise Charter issues. As the Supreme Court explained in 2019, still in the case of Le to which I referred before:

The realities of Charter litigation are that social context evidence is often of fundamental importance, but may be difficult to prove through testimony or exhibits. To be sure, social context evidence is a type of “social fact” evidence, which has been defined as “social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case”.

For those who wonder what “social context” means, the Supreme Court provides the answer.

Social context education can also help ensure that all litigants, whether they are successful or not, leave the courtroom with the feeling that they have received the respect and fair treatment they deserve. When it comes to witness credibility assessment, it can raise awareness about possible mistaken assumptions about human behaviour.

For example, many years ago, as a young judge, I participated in social context training where we learned how Canadians of different heritage show respect toward authority figures, including judges, in a way that may easily be confused with dishonesty. Canadians of Asian heritage, for example, often look down or away when speaking to judges. This seems quite simple and obvious now but, based on my upbringing and my experience to that point, I very well could have mistaken that cultural sign of respect as evasiveness and dishonesty. By simply learning more about the perspectives, beliefs and experiences of others in Canadian society, I, like other judges, am able to avoid that misconception.

It would be a mistake to assume that judges are fully aware of others’ beliefs and experiences simply by virtue of their previous legal training or that the mere fact of their appointment to the bench transformed them. This is not what’s happening. You remain the individual you were, and judges often come from the same group and the same background with the same stereotypes and mindsets that may be characteristics of that background. That’s why training is important.

Social context education aims to ensure judges are and remain aware of the ordinary experiences of their fellow citizens. In doing so, it ensures that every person who walks into the courtroom is treated respectfully, fairly and equally.

Parliament, like the Canadian Judicial Council, has an interest in encouraging the ongoing training of judges to maintain and even increase the confidence of litigants in the courts, without which true democracy cannot exist. Thus, year after year, the government allocates significant resources to support the professional development of judges. In budget 2019, Parliament added $2.7 million over five years to the $6 million provided every year to the Canadian Judicial Council for the training of judges.

Let us hope that the provinces, which are responsible for appointing judges to provincial courts, where the majority of sexual assault cases and many other civil and criminal cases are heard, will follow suit and adopt legislative measures similar to those found in Bill C-3. To encourage them to do so, the Standing Senate Committee on Legal and Constitutional Affairs, in its comments, strongly urged the federal government to provide the appropriate funding to the provinces.

In conclusion, honourable senators, the time has come to adopt this important bill, which seeks to increase public confidence, especially that of survivors of sexual assault, in the administration of justice. Bill C-3 would ensure that everyone who interacts with the judicial system is treated with the dignity, respect and compassion they deserve and that the decision-making process in civil, criminal or other matters is free of myths, stereotypes and prejudice. Thank you, meegwetch.

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