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

He said: 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.

Senator Batters, do you have a question for Senator Busson?

I do, if Senator Busson would take a question?

Senator Busson, you spoke briefly about your experience in courts and how many times you’ve witnessed sexual assault cases where judges displayed woefully inadequate training in dealing with sexual assault victims. I imagine that you probably saw similar things to what I did when I was practising law, also dealing with domestic assault victims. Could you expand on that? You just indicated that you don’t want to see any amendments, but what about a simple amendment dealing with domestic assault on this act?

Honourable senators, I have two major issues with this bill. I believe that it is an intrusion into judicial independence. I don’t want to use the hackneyed term “slippery slope,” but as Senator Busson said, the independence of the judiciary is sacrosanct. When we lessen the independence, we are striking at the very foundations of our democracy.

We heard evidence that the federal judges already get educated on issues such as sexual assault. I want to thank Senator Busson for her speech because it brought out a number of things that I also believe. Lawyers get trained in this as they go through school. You have to be a lawyer to be a judge in this case. There are time limits on when you can apply. Ten years, I believe, was used. However, there is an ongoing process with regards to education.

Senator Campbell, may I interrupt you because I believe a portion of your speech was not received. There was a technical issue. I don’t want you to start from the start, but if you could go back for at least a few minutes in your speech?

My first problem is the judicial independence. My second problem is the education process. We heard that 98% of all assault cases are heard by provincial court judges. All this bill says is the federal government should consider finding some money to give to the provinces to train their judges in this area.

I actually don’t think that the problem is the education. I think the problem is how we did in the past, perhaps, go about determining who would be a judge. As Senator Busson said, I believe there is a generation coming through where we will see continual changes, an evolution, if you will. The training is important; there is no question about it, but we are training federal judges who don’t even hear these cases.

The courts are continually having to address issues as we change as a society and as we see things in a different manner. That comes from education, but it also comes from the choosing of who will be our judges. Those are my two issues on this bill. Thank you.

Resuming debate. Senator Pate.

Honourable senators, as we rise today to speak to Bill C-3, fewer than 1 in 20 sexual assaults in Canada are reported to police, let alone go to trial. Sexual assault is the least reported offence in Canada because, for too long, people who have been victimized, particularly women and girls and especially those who are Indigenous, Black or living with disabilities are not believed or, worse yet, are treated by the legal system as if they, themselves, have done something wrong.

Not long after I was appointed to this place, I spoke about an experience I had reporting to police that my home had been broken into and my television stolen. I asked colleagues to imagine, instead of the professional and considerate assistance that I received, that it had been different. Imagine if I had been first asked by a police officer or a lawyer or judge about whether I ever let people watch that TV, whether I let people into my home regularly, and whether they were able to see the TV from inside or outside the house. Was there a cupboard for the TV? Did I keep the cupboard closed? Was the TV visible from the street? Were there curtains in my living room windows? Did I keep them closed? Did I keep them drawn at all times, in fact? When I bought the TV, what did I do with the box? Did I put it on the curb for recycling? Wasn’t all of this really just drawing attention to the fact that I had the TV; flaunting it, in fact? Really, wasn’t I just inviting someone to take it? That is how sexual assault victims are treated.

I know it sounds ridiculous, and yet these types of demeaning, invasive and intimidating inquiries are a reality and a palpable fear for far too many, especially if they are reporting a sexual assault.

While the debate on Bill C-3 necessarily focuses our attention on the treatment of sexual assault complainants by judges, we cannot forget that almost 9 out of 10 women in federal prisons in Canada have histories of physical or sexual abuse. Too many receive the message from the legal system that it is their job to protect themselves and their fault if they fail. Some end up criminalized when, after being deputized in that manner to protect themselves, they do so. These staggering numbers surely reflect the same systemic and shameful failure within the legal system to respond adequately to violence against women and children that Bill C-3 rightly acknowledges.

Will Bill C-3 make the difference it has promised for those with lived experience of abuse and assault? Victims, survivors, advocates and legal experts have been more than clear that the provisions are not sufficient to address the realities of sexism, racism, classism and ableism experienced by sexual assault complainants.

We must not allow the passage of this bill to trick us into being complacent. We must not think that our work is done. Crucially, Bill C-3 fails to ensure that judicial decisions in sexual assault cases are meaningfully accessible to complainants, members of the public, journalists and researchers.

This interferes not only with the principle that judicial decision making must be accessible as a form of public accountability. It also removes the opportunity to monitor whether Bill C-3 — criticized by many experts as merely aspirational or performative — will actually improve legal responses when it comes to sexual assault.

The Senate Legal Committee, in its report on Bill C-3, has called on the government to remedy this gap in accountability by working with provincial and territorial counterparts to ensure that all decisions in sexual assault law cases are readily available to the public, ideally through a free online database. Both Senator Dalphond, the sponsor of the bill, and the Honourable Rona Ambrose, author of the original legislation on which Bill C-3 is based, have been instrumental in advocating this measure as a necessary complement to Bill C-3.

The original version of the legislation, Bill C-337, would have ensured accessibility by requiring that judges not only provide their reasons but do so in writing in all sexual assault cases. By contrast, Bill C-3 requires written reasons only where proceedings are not “recorded.”

In practice, this requirement adds nothing in terms of transparency or accountability because all criminal proceedings are already recorded. Bill C-3’s requirement for written reasons would therefore never apply or lead to any improvement on the status quo.

Bill C-3 treats written decisions and oral decisions with recordings as interchangeable. They are not.

While decisions with written reasons appear, and are routinely accessible and searchable, on court websites or through the public CanLII database, oral decisions with recordings do not. This creates significant barriers to access.

The Federal Ombudsman for Victims of Crime has noted that many complainants cannot absorb reasons delivered orally. Some are understandably overwhelmed or may choose to leave the courtroom if hearing the decision in the presence of the accused is experienced as unbearable. Those without legal backgrounds may require technical jargon to be distilled into plain language.

Unless the Crown decides to appeal a case or a journalist decides to report on it, there are almost no opportunities for researchers, legislators or the public, let alone complainants, to scrutinize sexual assault cases where decisions are given orally instead of in writing. Gaining access to recordings of oral decisions usually means ordering a transcript. This process varies from jurisdiction to jurisdiction. A person may be aware that the decision exists but have no idea, much less the technical know-how, to navigate the complex, costly and time-consuming process for requesting transcripts.

We now know well examples of cases in which courts failed women, in particular Indigenous women, who were victims and survivors of sexual assault: the Wagar decision, where the trial judge committed multiple legal errors and asked the complainant why “couldn’t she have kept her knees together?” if she really didn’t want the accused to assault her; the Al-Rawi decision, where the legal errors regarding capacity to consent were exemplified by the trial judge’s assessment that “clearly a drunk can consent”; the Blanchard decision, where the trial judge ordered the complainant to be shackled in court and imprisoned her for five nights in a cell next to the accused; the Barton decision, where the trial judge made errors of law, including failing to adequately insulate the jury from misogynist and racist myths and stereotypes.

These cases are not, unfortunately, horrific outliers. They are horrific. Rather, they stand out because they are among the relatively few that happened to be appealed, or a journalist happened to be in the courtroom, or the diligent efforts of feminist scholars brought together the combination of skills, resources and persistence needed to obtain and comb through transcripts.

Unless we ensure that oral reasons are transcribed and made available to the public, Bill C-3 cannot live up to the promise in its preamble of enhanced transparency and accountability. Witness after witness before the Legal Committee emphasized the importance of accountability and monitoring in order to generate public confidence in an area of the law that is exceedingly complex and too often infused with discriminatory and harmful myths and stereotypes.

In addition to its observation regarding accessibility of decisions, the Legal Committee reported that a law commission could play a vital role in monitoring and providing expert advice for addressing sexism, racism and other forms of discrimination in the legal system affecting those who have experienced abuse. The 2021 budget allocates an annual budget for the revival of the Law Commission of Canada, with few details so far regarding plans for implementation.

Monitoring the implementation and impact of Bill C-3 could be one potential role for the commission. As the government invests in training judges with respect to sexual assault law, it would also be timely to review the ways in which mandatory minimum penalties prevent judges from putting this training into practice when crafting fit and fair sentences.

In particular, as was documented by Justice Lynn Ratushny when she conducted the Self-Defence Review, the harshest mandatory minimum penalty, life in prison, disproportionately penalizes women who protect themselves or their children by using lethal force against an abuser. It is often used to coerce guilty pleas in bargains that effectively prevent judges from considering whether a charge is even appropriate in the first place or whether the circumstances and context of histories of abuse warrant a less harsh penalty.

Victims, survivors and their advocates shared their concerns that Bill C-3 does not go far enough. They want and trust us to act to ensure that monitoring mechanisms are in place, that reasons in sexual assault law cases are accessible and that the push to end violence against women and children does not stop with the passage of Bill C-3. Thank you. Meegwetch.

Honourable senators, I rise today to speak to Bill C-3, An Act to amend the Judges Act and the Criminal Code.

I want to thank the sponsor, Senator Dalphond; the critic, Senator Boisvenu; all the members of the committee; the clerk, Mark Palmer; and the staff of the Standing Senate Committee on Legal and Constitutional Affairs for their work on this bill.

I want to also thank the Honourable Rona Ambrose for standing up for women who are sexually assaulted. Ms. Ambrose, by introducing Bill C-337, the predecessor to Bill C-3, you have shown your dedication and commitment to addressing harmful myths and stereotypes about sexual assault law, and I know women across Canada thank you for that.

Just the fact that you introduced this bill has already had a great impact on the judiciary. As we all know, most cases of sexual assault are heard in provincial courts.

During witness testimony for the committee’s study of Bill C-3, we were informed that provincial judges in British Columbia heard more than 98% of sexual assault cases in that province.

According to Ashani Montgomery from the Vancouver Rape Relief and Women’s Shelter:

Most sexual assaults are tried in provincial court. In 2017 in British Columbia, out of 4,279 sexual assault trials, 81 were tried in Supreme Court . . .

That amounts to approximately 2%.

Honourable senators, that percentage likely reflects similar rates in the rest of Canada.

The Honourable Adèle Kent, Chief Judicial Officer, National Judicial Institute, echoed that “The reality is that provincial and territorial judges conduct most of the sexual assault cases in Canada.”

Paul Calarco of the Criminal Justice Section of the Canadian Bar Association also stated:

. . . provincially or territorially appointed judges . . . preside in the courts across Canada where the majority of sexual assault cases are actually heard.

What is more, I believe we are all aware that Judge Camp was a provincial court judge when he made the most despicable remarks, which really are the genesis of this bill.

Justice Camp’s discipline hearing was while he was a Federal Court judge and the justices dealt with his case. He is no longer a judge.

To reiterate, this bill applies to Federal Court judges only, and approximately 2% of sexual assault cases are heard in federal courts.

Honourable senators, I do not look at statistics lightly. We all know one case is too many. That said, I do believe that this is a cause for pause and reflection.

From a very young age I have been an activist, and I have fought for the equality of all women. Some of my capacities have been as the chair of the British Columbia Task Force on Family Violence and a member of the national panel on violence against women.

I continue to work on these issues of sexual assault.

As an activist and as a lawyer, after two years in practice, I started working on training with judges on violence against women and how racism affects women of colour.

Later, I started working with Justice Campbell and the Western Judicial Education Centre that used to train provincial court judges.

After a while, we were also working with the National Judicial Institute. We travelled across the country to provide courses on violence against women and racism.

Now, in my role as a senator, I take very seriously my responsibility of being a Canadian legislator.

All this experience has formed my unrelenting belief of how important it is that there be appropriate and well-informed training of judges who enforce our rule of law. This has to exist within the independent judiciary, external to the rule of Parliament. Honourable senators, without an independent judiciary there can be no rule of law. Since 1982, the rule of law has been enshrined in the preamble to the Charter. Maintaining the rule of law depends on the existence of an independent judiciary.

That is not to say that there have not been challenges. There are still politicians who propose challenges to the independence of the judiciary. For instance, in February 2001, a political movement in B.C. reminded us that the foundational principles assert:

. . . the legislature has supremacy over the judiciary, the executive and the administrative branches of government and all must be held fully responsible for the proper execution of their respective functions . . .

Further, this political movement wanted to include clauses that require legislation for the recalling of politicians and judges.

In 1956, Professor Lederman, a Canadian constitutional scholar and the first dean of the Queen’s University Faculty of Law, spoke about the independence of the judiciary as one of the four basic principles of English common law:

. . . (1) “That no man (one) is above the law . . . (2) That those who govern . . . do so in a representative capacity and are subject to change . . . (3) That there shall be freedom of speech, thought and assembly. (4) That there shall be an independent judiciary. . . .

To paraphrase Lederman, it is unacceptable that Parliament should today regard itself as free to abolish the principle that has been accepted as a cornerstone since the Act of Settlement.

Lederman is clear:

It has been recognized as axiomatic that if the judiciary were placed under the authority of either of the legislative or the executive branches of the Government then the administration of the law might no longer have that impartiality which is essential if justice is to prevail.

In Beauregard, former Chief Justice of Canada, Justice Dickson, stated:

The role of our courts as resolver of disputes, interpreter of the law and defender of the Constitution, requires that they be completely separate in authority and function from all other participants in the justice system . . . .

In Canada, the rationale for this separation is even stronger than in Britain since we have a federal system that requires an independent judiciary to settle issues between provinces and the provinces and the federal government.

It follows that at the heart of judicial independence is the practice that judges are clearly set apart and are free to act impartially and free from influence that could interfere with proper exercise of judicial function. This privileged position may at first glance appear to allow judges to act as they wish, even to the detriment of the common good. There are, however, a number of restraints on judicial conduct. A judge is barred by the discipline of the law and is obliged to decide in accordance with the law. Of course, as we have all seen, judges make errors, which is the reason for the courts of appeal. With regard to judicial misconduct, there is a process that can result in removal from office, as was in the case of Justice Camp.

The privileges of judicial independence sometimes come under scrutiny by us as politicians. These are sometimes derived out of the good intention to, in some way, educate the judiciary. However, honourable senators, I believe that the best way to ensure that the judiciary is capable and worthy of being justices in Canada is to ensure that judges are chosen from a diverse Canada and have a deep understanding of the communities they live in. This will better ensure proper judgments than any remedial legislation we might have.

Honourable senators, I would like to point out that the government’s Bill C-3 is very different from Bill C-337, Ms. Ambrose’s bill. Unfortunately, Bill C-3 does not address myths and stereotypes, as was the vision originally brought forth by Ms. Ambrose. Whereas Bill C-337 made written decisions mandatory, Bill C-3 has rendered them optional. Additionally, while Bill C-337 made it clear that the judicial council shall submit a report on the seminars to the minister, Bill C-3 has changed this wording to “should.”

Further, Bill C-337 ensured that the minister would receive reports related to how many sexual assault cases were presided over by a judge who never participated in the seminars. Bill C-3 removes this clause completely.

Finally, one the foundational principles of Bill C-337 is to require a judicial candidate to complete sexual assault education. Bill C-3 reframes this foundation by simply requiring a new judge to undertake — but does not make it mandatory — to complete this training, thus effectively removing the requirement entirely. That is not to mention that this requirement only applies to new judges and does not apply to current judges. In effect, Bill C-3 has taken all the muscle out of Bill C-337. They are not the same bills.

Honourable senators, most of you know that I fled my home of Uganda under the tyranny of Idi Amin. In Uganda, prior to the time my family and many others were expelled, we did have an independent judiciary. My mother was a probation officer, and throughout my adult life I heard her speak about how she was in court the day Amin’s army officials walked into the courtroom of the then-Chief Justice of Uganda, Benedicto Kiwanuka, to issue arrest warrants against some of the most prominent Ugandans to show that Amin’s regime had credibility in arresting these people. On a very personal note, I am told my father was on that list and very soon after that, my father fled Uganda in very difficult circumstances.

In the face of this threat to his personal safety, Chief Justice Kiwanuka exercised his right of independence and refused. He was threatened that if he did not issue the arrest warrants, he would be dealt with harshly. He still refused. He was dragged out of his courtroom and dumped into the back of a car trunk, never to be seen again. We know he suffered a terrible death, but he never relented.

Honourable senators, that is why the independence of the judiciary is in my DNA. Fortunately, our Canadian justices will never suffer that fate, and they know they will always be able to exercise their right of freedom. However, now Parliament is intruding on that right. Honourable senators, I finally ask you all: Will this change anything?

When Senator Campbell, deputy chair of our committee, asked Justice Kent what this bill would add to the training that is already going on across Canada, Justice Kent replied:

In one respect, I would suggest that the training will continue to evolve the way it has, and in one way, I might say, it would make no difference.

Senator Campbell then asked Ms. Savard, director of the Criminal Lawyers’ Association, what this bill will add to what is already taking place; her answer was very telling: “I think the short answer is nothing.”

Senator Campbell followed up by asking, “Is this bill constitutional?” Ms. Savard stated: “I would say no, and I’ll let Ms. Enenajor add to that if she wishes.” Her colleague Ms. Enenajor echoed the sentiment when she replied that she believes the bill is not constitutional.

Honourable senators, still today, I work directly on these issues of sexual assault. In fact, every week I get up early on Thursday morning to speak with women about how to address issues of physical and sexual assault against women in Canada and around the world. This is a federal bill, and most sexual cases are heard in provincial courts. Bill C-3 falls short of the intent of Bill C-337. It will change nothing. It is also very likely unconstitutional and it will infringe on the coveted balance of legislative and judicial powers upheld by judicial independence.

Honourable senators, we know that as the chamber of sober second thought we have a different role than the other place. The question we now have to ask is this: Are we prepared to erode our Canadian judiciary’s enshrined rights of independence? Thank you very much, senators.