Second reading of Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault)Published on 19 June 2017 Hansard and Statements by Senator Serge Joyal
Hon. Serge Joyal:
Honourable senators, I committed last Thursday to take part in this debate today. I’m pleased to be in a position to do that tonight.
I would also like to mention that I had an opportunity earlier today to speak to the sponsor of the bill in the other place, the Honourable Rona Ambrose, and I have absolutely no doubt about the objectives that Ms. Ambrose is pursuing in relation to the bill. I would also like to commend Senator Andreychuk for the way she presented the bill, because I think she outlined the objective of the bill very well.
I have, however, a certain number of preoccupations I want to share with you tonight in relation to this bill. This bill received close attention from the Canadian Judicial Council of Canada, the Canadian Bar and the Barreau du Québec. Those briefs tabled in the other place, on April 19 and 20, raised important questions, and I want to offer my thinking in relation to those three briefs.
The bill has two objectives. The first objective, as is stated in the summary of the bill, is to make sure that each candidate in appointment to a judicial position in the federal government, under federal government jurisdiction:
. . . have completed comprehensive education in respect of matters related to sexual assault . . .
That’s the first objective, to compel comprehensive education in matters of sexual assault.
The second objective of the bill is to make sure that the Canadian Judicial Council reports on continuing education seminars to the Minister of Justice, who will table the report to Parliament.
In relation to the first objective of the bill, to ensure that there is comprehensive education, I had a number of reflections. The first one is that any candidate who is a lawyer who has been practising law for 10 years, or has been a member of the bar for 10 years, will be compelled, before being considered for an appointment, to have attended a seminar that is spelled out in clause 3 of the bill, a seminar that will be conducted to the satisfaction of the commissioner of the Judges Act.
Who is the commissioner? It is provided for in section 74 of the Judges Act. The commissioner essentially has the status of a deputy head of a department who is responsible for the administration of Part 1 of the bill and the administrative arrangements provided in the act and also by law within the responsibility of the proper functioning of the judicial system in Canada.
What we are doing, essentially, is investing a civil servant with the responsibility to ensure that those seminars are conducted specifically the way they are provided for in clause 3 of the bill, and also to make sure that only those candidates who have attended those seminars and have completed them to the satisfaction of the commissioner will be considered as an admissible candidate.
I was reflecting on that because according to the provincial law that rules the professional order, normally the training information of lawyers is provided under provincial jurisdiction. I read the responsibility of the order of the law du profession du Quebec, because I’ve checked, and here it is the responsibility of law du profession. To make sure that they —
—that they can control the competence and integrity of their members. That way, before admitting a candidate as a practising professional or issuing a licence, the order ensures that the candidate has the requisite training and skills.
The inspection committee primarily verifies the quality of the professional services. It can also recommend that the order’s board of directors require a member to first attend a seminar, second, take professional development courses, and finally, have the member’s right to practise limited or suspended.
It is clear, according to me, that to compel any lawyer to do a seminar to the satisfaction of a federal commissioner is an intrusion into provincial responsibility in relation to the professional order, because all those candidates are not only candidates for a Superior Court position or an appointment that will deal with sexual assault but with any cases that pertain to a Federal Court judge, an appellate Federal Court judge, a member of the Admiralty Court, the Tax Court and a Superior Court, and because of his or her professional training in the matter, for instance, of labour law or commercial law or civil law, will never hear a case related to sexual assault.
In other words, it is a pervasive obligation that will be monitored and determined by a federal civil servant. In relation to this, honourable senators, I think the bill in that way, in my opinion, is an intrusion into the responsibility of the province to rule the profession of lawyer. I don’t question the intent of the bill. I subscribe totally to the general objective of the bill, which is to make sure that judges who hear sexual assault cases get the proper training, as the bill says, in the social context and in all that relates to:
. . . sexual assault law that . . . includes instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants.
That’s my first preoccupation in relation to clause 3 of the bill.
I have a second group of preoccupations in relation to clause 3 of the bill that pertains to once a judge has been appointed, he or she will be compelled to attend a seminar in relation to the matter of sexual assault, and that that seminar will have to be provided in consultation with sexual assault survivors, as well as with groups and organizations that support them.
The problem I have is with section 11(d) of the Charter. Section 11(d) of the Charter provides the following:
Any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . .
So the question is: What is an independent and impartial tribunal? The Canadian courts, especially the Supreme Court of Canada, have had an opportunity in the last 30 years to delve into section 11(d) to determine what we understand in the Canadian law about impartiality and independence. In three cases, especially, in the Valente case in 1985, in the Beauregard case in 1986 and in a more recent case, the reference in relation to remuneration of judges that was introduced by Prince Edward Island in 1997.
In those three cases, the Supreme Court has had an opportunity to establish how much the independence principle of the judiciary is fundamental to the Canadian structural order. In fact, there are three powers in our system of government. There is the judicial system, or governance; there is the executive, that is, the government; and the legislative. Each one is balanced in a way that the judicial system has to remain totally independent from the executive and from the legislative power. The courts have been very clear on that. They have repeatedly, through those three cases, mentioned that not only does the independence have to be respected, but it has to appear independent.
So not only does the law have to provide for independence, as section 99 of the Constitution states, which provides for security of tenure, and section 100, for financial autonomy of the justices, but the overall system has to ensure that judges are immune from legislative pressure, from the pressure of the parties to the litigation, and more from the pressure of the public.
What the impact of the bill will realize, in my opinion, is the fact that you will have those statistics about judges who have attended seminars and judges who will have heard sexual assault cases. People will put the two together and use that as pressure on the judicial system to provide for a different way of approaching sexual assault cases.
Judges have to be impartial. It is an essential element of section 11(d) of the Charter, as I mentioned, that the hearing has to be by an independent and impartial tribunal. What is an independent and impartial tribunal? An impartial tribunal, to quote Justice Le Dain in the first case I mentioned, the Valente case of 1988, means an “objective state of mind, which is fostered by reliance on law to resolve disputes.”
In other words, the justice has to be in a state of mind that puts him totally in an objective position to hear the parties that are in front of him: the victim and the accused. Not more the victim and less the accused. Our system of criminal law is based on the assumption of the presumption of innocence, and the Crown has to prove beyond a reasonable doubt that the accused person, of course, benefits from that presumption.
As Professor Greene has written in an article that I referred to you, which is The Doctrine of Judicial Independence Developed by the Supreme Court of Canada, Professor Greene from York University, at page 191, writes the following:
It is central to the adjudicative process that judges decide disputes, as much as possible, without any preconceived notions of favouritism or animosity toward any of the litigants, that is with impartiality. One method of promoting impartiality is to attempt to ensure that the judge is free from outside interference by the litigants or other interested parties, interference which is intended to bias the judge.
The way I read the bill — and that’s my humble submission to you — the bill, of course, puts the essential emphasis on, “sexual assault survivors, as well as with groups and organizations that support them.”
In other words, there’s only one part of the trial that has to be the focus of the attention, which is the sexual assault survivors and the group and organizations that support them. So it’s quite clear that we are here outside the boundaries of a victim and an accused. We are in the context of the social networks that exist in our society to promote, to improve the conditions of sexual assault victims. If we are to do that, it has to be in a balanced way, otherwise, there will be the perception that when the judge is on the bench, he or she has to put the weight of his attention to the victim at the expense of the overall impartial objective hearing. That’s the perception that’s created by the bill. I don’t mean it will happen, but the perception is that when you read the bill, this is the intent of the bill.
So as much as I support the training of justices in —
May I have five more minutes?
The Hon. the Speaker: Five more minutes, colleagues?
Hon. Senators: Agreed.
Senator Joyal: As much as I support the training of justices or judges who will hear sexual assault cases, I think that to put that in legislation is a precedent that compels me with sober second thought. If we do that for the sexual assault victim, why don’t we do it for the Aboriginal people? The Aboriginal people are in a dire situation in relation to justice. I read Recommendations 27 and 28 of our colleague Senator Sinclair in relation to Aboriginal people in the justice system.
The Truth and Reconciliation report states:
27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Then paragraph 28:
We Call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, . . . This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism
In other words, I think our colleague Senator Sinclair has put it properly: It’s for the Federation of Law Societies and the law schools to train the lawyers. Once those lawyers have been appointed judges or act in cases in relation to Aboriginal peoples as much as with sexual assault cases, they will have the proper training. But if we amend the Judges Act to do this, my contention to you is that we should do it for the Aboriginal people because we know that 23 per cent of prisoners in Canada are Aboriginal people. In the province of our esteemed colleague Senator Andreychuk, Saskatchewan, 48 per cent of inmates are Aboriginal people. We can conclude that there are systemic problems with the Aboriginal people in the justice system, as much as there might be systemic problems with sexual assault victims. My humble conclusion in relation to those is that if we do that in the same way that the bill proposes, we should do it or we should be called to it for another group of peoples who bear the weight of the justice system in a systemic, discriminatory way.
Before we accept the principles that are put forward Bill C-337, I humbly submit to you, honourable senators, that we need to bring sober second thought to that bill — not because I’m opposed to it. With regard to its objective, I subscribe to it 100 per cent. The government in the other place introduced Bill C-51 last week, which reviewed the level of proof and the protection of the victim in relation to the Criminal Code. I read the bill. At first sight, I think it’s totally constitutional. However, this bill raises constitutional issues that have been well identified by the Canadian Judicial Council.
Who is the Canadian Judicial Council, honourable senators? It’s found at section 59 of the Judges Act. The Canadian Judicial Council consists — listen to this — of the Chief Justice of Canada, who will be the chair, and:
b) the chief justice and any senior associate chief justice and associate chief justice of each superior court or branch or division thereof;
(c) the senior judges . . . of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice; and
(d) the Chief Justice of the Court Martial Appeal Court of Canada.
Thirty-nine of the highest judges in Canada came forward with a brief in the other place, two months ago, with this conclusion at paragraph 28:
. . . We are of the view that such a requirement would infringe on the judiciary’s independence to maintain control over judicial education and judicial discipline matters.
The Canadian Bar Association, as I mentioned, came with a similar brief which stated:
While we appreciate that the Bill is not intended to challenge the judiciary in this manner, any such effect may be found constitutionally unacceptable.
The Quebec bar came to a similar conclusion.
The Hon. the Speaker: I am sorry to interrupt, but I must advise that the honourable senator’s time has expired.
Senator Joyal: Honourable senators, I am finished.
I suggest, honourable senators, that we think seriously about the constitutional impact of this bill and I thank you for your hearing in relation to that.