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

In September of 2014, Mr. Justice Robin Camp, as he was then, stepped into an Alberta provincial courtroom to preside over the trial of a Calgary man who stood accused of sexual assault.

Camp had very little experience as a criminal trial judge or with criminal law in any form. Originally from South Africa, he had only practised law in Canada for 12 years before he was appointed to the bench, and his practice had been one of civil litigation with a concentration in oil and gas law.

As Camp himself later said, his knowledge of Canadian criminal law was, to use his own expression, “non-existent.” Nonetheless, he was presiding in the case of a man who’d been accused of raping an Indigenous teenaged girl. But Camp seemed to have had a hard time remembering exactly who was on trial — the girl or her alleged assailant. Over and over again, he referred to the young woman as the accused. That’s pretty much how he treated her, cross-examining her from his bench about her behaviour on the night in question.

If she really hadn’t wanted to have sex, he asked, why didn’t she just keep her knees together? Why didn’t she try to “sink” her bottom, to use the judge’s words, so that the man couldn’t penetrate her? Why didn’t she scream?

When the girl testified that the alleged assault had hurt her physically, Camp scoffed, saying that, “sex and pain sometimes go together, that — that’s not necessarily a bad thing.”

He mocked the homeless teenager for not having a job and suggested the alleged incident was largely her fault because she’d been drinking and should have been more careful that night.

When the Crown prosecutor tried to explain the Canadian laws of sexual consent, Camp pooh-poohed her:

Are children taught this at school? Do they pass tests like drivers’ licences? It seems a little extreme. Can you show me one of those places it says that there’s some kind of incantation that has to be gone through? Because it’s not the way of the birds and the bees.

The accused was acquitted. Not long after that, the judge was promoted, appointed to the Federal Court. If it hadn’t been for a complaint filed by law professors from the University of Calgary and Dalhousie University, Robin Camp might well still be there. Instead, he’s gone down in Canadian legal history in all the wrong ways. He resigned from the bench after an inquiry panel of the Canadian Judicial Council unanimously recommended his removal.

Yet, in a darkly ironic way, we may need to thank Robin Camp because we probably wouldn’t be having this important debate without him. He became the inspiration for and incitement of Bill C-337, a private member’s bill introduced in the other place during the last session by my erstwhile Alberta parliamentary colleague Rona Ambrose. Ms. Ambrose was rightly concerned that Canadian judges were not receiving sufficient education and training in the jurisprudence of sexual consent and in the legal precedents that govern modern sexual assault proceedings.

Ms. Ambrose’s bill died on the Order Paper in the spring of 2019 to the great frustration of many. It was introduced in a modified form as Bill C-5 this spring — and died on the Order Paper yet again. It returns to us today, twice revenant, as Bill C-3. But despite the delays, I put it to you, my Senate colleagues, that C-3, the bill we have before us today, is an example of the Senate doing some of its most useful work.

The original bill, Bill C-337, however well-intentioned, raised some significant concerns about protecting the independence of the judiciary and about protecting the privacy of those who might be mulling the idea of applying for consideration as a judge.

When the bill came to the Senate Standing Committee on Legal and Constitutional Affairs, senators on that committee, including the bill’s sponsor, Senator Dalphond, and our former colleague Senator André Pratte, weighed in with thoughtful questions and practical amendments that did a great deal to address some of the vulnerabilities of the original legislation. The new Bill C-3 which we have before us now was very much informed and shaped by the work of all the senators on that committee.

I have spent much of this strange COVID era speaking to high school students and university students and Rotarians about the work of the Senate and whether this upper chamber serves any useful purpose. In my home province of Alberta, there is, to put it politely, considerable skepticism about the value of what we do here. But should we pass this bill — as I hope we will — I will be proud to point to it as a clear case of the Senate doing its job and doing it well, giving sober second — and third — thought to important legislation to make sure we get it right and don’t create unanticipated problems.

Bill C-3 is a credit to the hard work and passion of Rona Ambrose and to all the senators who did their own hard work to give this bill its final form and shape.

And let it be said that while I began my remarks by singling out Robin Camp, his comments were far from an isolated incident. This isn’t legislation prompted by one outlier of a judge. We have a systemic problem in Canadian courts — and, it must be said, in Alberta courts — when it comes to an understanding of the case law relating to sexual assault and consent.

Before Robin Camp, there was the late John McClung of the Alberta Court of Appeal. He was hearing an appeal in the case of a man who stood accused of sexually assaulting a 17-year-old girl who had come to his trailer for a job interview. The girl, said McClung, had not presented herself in “. . . a bonnet and crinolines” — as though bonnets and crinolines were proof of sexual purity or a defence against assault. He went on to suggest that the accused’s actions were “. . . less criminal than hormonal” and suggested the girl might better have dealt with the situation with what he termed “. . . a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee.”

It is perhaps not irrelevant to note that the accused in this case, Steve Ewanchuk, had previously been convicted four times of sexual assault, and would later be convicted of the sexual assault of an 8-year-old child. After eight sexual assault convictions, he was deemed a long-term offender in 2007 and was released under a strict supervision order just this year. So perhaps it wasn’t just the hormones, after all.

While McClung and Camp made national headlines, there have been other disturbing Alberta cases which I covered which seemed almost as problematic, if less notorious. There was the Edmonton judge who acquitted a man in the sexual assault of his adolescent stepdaughter, suggesting the girl should have done a better job of staying away from him. Then there was the Edmonton judge who ordered a homeless Indigenous rape victim held in remand for five days, simply to guarantee that she’d appear at trial, forcing her to be transported to court in the prison van in shackles, right alongside the serial rapist who was later convicted of kidnapping, stabbing and sexually assaulting her, and later deemed a dangerous offender. I could continue, but I think by now you have grasped my larger theme.

While Bill C-3 is a good step forward, it is no panacea to address the deeper problem of the lack of diversity on our courts. We must continue our efforts to ensure that the bench is a more accurate reflection of contemporary Canadian society, that our judges have not just the classroom training, but the lived experience to try the cases before them. We need more women on the bench, we need more Indigenous judges, more racialized judges, more LGBTQ judges so that our judiciary better represents the reality of Canada today.

Our courts face another challenge. Once upon a time, lawyers in private practice ended up doing all kinds of law, especially when we lived in smaller communities and local lawyers were more akin to general practitioners, dealing with everything from divorce to drunk driving to wills and estates. But more and more in the last decades, Canadian lawyers have become specialists, experts in tax law or labour law, environmental law, insurance law or criminal defence. They spend years honing and narrowing very particular skills, first in law school and then in their profession. But once lawyers are appointed to the bench, they have to preside over all kinds of cases. They need to become generalists and experts at the same time. And when we continually appoint lawyers with little or no experience in criminal law to try criminal cases, well, that can lead to mistakes and miscarriages of justice.

It is not the work of Bill C-3 to fix all those problems. A few mandatory courses designed to bust the myths around sexual assault won’t help us to diversify our courts, nor to address the effects of appointing lawyers who are narrow-subject-matter specialists to the bench.

However, what Bill C-3 and its predecessor Bill C-337 have done is to engage Canadians in this important national debate about the way we select and train those who are given the extraordinary responsibility of sitting in judgment upon their fellow Canadians. It is no small or easy task to be a judge. It is a great trust and I know, at times, a great burden.

The goal of Bill C-3 should really be to make that job just a little bit easier, to give new judges the tools, training and support they need to carry out their difficult and sometimes morally challenging work. The bill now strikes the right balance — respecting the independence of judges and of the Canadian Judicial Council, while at the same time, preparing new judges for the duties and dilemmas ahead. It stands as a worthy legacy for Rona Ambrose and for all the sexual assault victims who’ve had to fight for their dignity and to have their voices heard. Thank you and hiy hiy.

I would be delighted to take a question.

Thank you for your question, senator. I’m sorry, but I didn’t get the interpretation, so it’s a little hard for me to understand the subtleties of your question, but I’ll try to answer it anyway.

It’s absolutely necessary that we respect the independence of the Judicial Council because we need to make sure that our judiciary is independent and that we in the Senate and in Parliament in general are not overly interfering in the independence and the integrity of the Judicial Council. However, it’s also really important for Canadians to have continued confidence in our courts, that Canadians understand that the judges who sit in these cases have the training, background and experience they need to adjudicate them fairly. And it is also important that the Canadian Judicial Council continue to have the robust power to discipline judges where necessary so that Canadians retain confidence in the integrity of their courts and in the fairness of the judicial process.

If I may answer that question, I managed to get the translation on so I got all the subtleties this time. I don’t, I’m afraid, have information specifically about the efficacy of the training programs we have. I know that for both the provincial courts and for the superior courts — the Court of Queen’s Bench as they are known in my home province of Alberta — it is absolutely necessary that judges have ongoing training, whether that’s workshops provided by other judges. In my previous incarnation as a journalist, I was often asked to speak at training sessions for judges in Edmonton.

An understanding of the law around domestic violence is absolutely essential, and I absolutely share your profound concern that those cases are not always adjudicated with an understanding of all the complexities that go into a partner’s decision to perhaps remain in an abusive relationship.

We don’t want to get into a situation where Parliament is being so prescriptive that we’re coming up with a rubric every year, a checklist of all the things judges have to learn. We shouldn’t be micromanaging the courts to that extent.

I’m hoping that Bill C-3 perhaps will be a prod and an inspiration to those who train judges, both provincially and at the Superior Court level, to provide that kind of ongoing professional support, so that judges are kept up to date about changes, not just —

If Senator Dalphond would like to ask me a question, I would be happy to request another five minutes, if the chamber agrees.