Second reading of Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault)Published on 3 October 2017 Hansard and Statements by Senator Joan Fraser (retired)
Hon. Joan Fraser:
Colleagues, I want to say at the outset that, like I’m sure every member of this chamber, I strongly support what I take to be the objective of this bill if, as I believe it to be, that objective is to work to ensure that we never again have the kind of ignorance displayed by judges in certain sexual assault trials that has appalled this country too many times. Speakers before me have described some of those cases. I won’t repeat what they so eloquently said, but this is and has been a problem — not with most judges but with some judges — and it’s the kind of problem that should never arise. It may not be as common as we might fear, but it should never happen.
The objective of minimizing that ignorance is a noble one. My difficulty is that I have some problems with this bill as it is drafted, and I think I need to describe them. Let me begin by walking through examples from the text of the bill to suggest why I think it needs attention.
The first line in the preamble, for example, says that “survivors of sexual violence in Canada must have faith in the criminal justice system.” I do not believe that Parliament can legislate that any Canadian must have a given opinion or a given faith. It would be nice if by simply passing a law we could say all Canadians now must have faith in the judicial system or the democratic system, but I don’t like the use of the word “must.” That’s a small thing, but it bothers me.
Another thing that bothers me, also in the preamble, is the statement that “problematic interpretations of the law may arise.” Now, I’m not a lawyer, but I’m not quite sure what “problematic” means in legal terms; and when in doubt, the old editor’s rule is to leave it out. It could very well have been adjusted to say “misinterpretations” or “faulty interpretations.” “Problematic” bothers me.
Here’s another point from an old editor: When you listen to the proposed “short” title of this bill — the “Judicial Accountability through Sexual Assault Law Training Act ” — that’s not a short title. Indeed, I think it’s arguably longer than the long title.
Then we get to the substance of the bill, which says that a candidate for a judicial appointment must have completed recent and comprehensive education in sexual assault law, and then it goes on to describe some of the elements of the preparation of that education.
With respect, people spend their whole lives studying various topics, including legal topics, and do not claim at the end of those careers to have achieved comprehensive understanding of, or education in, anything as complicated as sexual assault law. I’m perturbed by the possibility of problems being raised, spokes being put in wheels, if somebody argues that the available training has not been comprehensive. I don’t think that word is needed here. I think it’s a concept that could lead to more problems than it solves.
Then we go on to talk about the education program that the candidates for the judiciary have to have completed, in terms of how it has been developed:
. . . in consultation with sexual assault survivors, as well as with groups and organizations that support them; and 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, and . . . .
That is an excellent list, but I think it might be even more excellent if it included provision for input from, for example, members of defence lawyers’ groups. Because although my heart is with, always, the victims of sexual assault, we’re talking about legal proceedings here, and it’s important in legal proceedings that, above all, the judge understand all the complexities on as many sides of the issue as possible, and that includes, of course, the defence.
Then the education in question must also include social context education. Now, this may be pure ignorance on my part, but I don’t know what “social context education” is. I mean, we’ve already talked about myths and stereotypes and input from survivors. I’m not sure what “social context education” is. However, as I say, that may simply be ignorance on my part.
Then we come to the portion of the bill that requires the Canadian Judicial Council to submit a report on the seminars describing the title and content of each seminar, the number of judges who attended each seminar, the court on which they serve — which is starting to get very close to enabling inquirers to figure out who is taking these courses — and the number of sexual assault cases heard by judges who have never participated in such a seminar. Why would we need a report on that? Why couldn’t the judicial authorities, the courts themselves, perhaps on the suggestion of the relevant bar associations, just say that sexual assault cases shall not be heard by a judge who has not completed the relevant training? I’m perturbed by this notion that the minister must table in Parliament a report of this detailed nature about the judicial system.
Then we come to the section which says that the judges must provide written reasons for a decision that a person is acquitted, discharged, found guilty, found not criminally responsible or found unfit to stand trial, for quite a long list of offences. However, that list itself in some ways puzzles me. If you’re going to require reasons to be given, written reasons, it seems perfectly obvious to include in your list the offences of, for example, sexual interference, invitation to sexual touching, incest, corrupting children, sexual assault with a weapon, aggravated sexual assault — and there are others on the list.
If you’re going to require written reasons, those seem like good things to have on your list. But why not include the offence of making sexually explicit material available to a child, the offence of luring a child, the offence of making an agreement or arrangement to commit a sexual offence against a child, and the offence of indecent exposure to a child? So I don’t quite follow the logic under which this list was drawn up.
Those are, if you will, difficulties that came to my mind simply through reading the text of this quite short bill.
But I have other problems that some senators might consider more serious as, in many ways, I do myself. One is, as has been mentioned here, that it strikes me as profoundly unfair and a potential invasion of privacy to require lawyers to have completed this education before they apply to be judges. That is a clear signal to everyone else in the room taking the same course that I want to be a judge. If I make it to a judgeship, that’s one thing, but what if I’m rejected, as many candidates for the judiciary are? It’s in the nature of things; there are more applicants than nominees. Judicial circles are as prone to gossip, sometimes malicious, as any other circles. This seems to be an unnecessary and unfair requirement.
I would also observe, as has been observed already in this debate, that the vast majority of sexual offences are matters for provincial courts, which makes it even more problematic that we should be getting into this kind of detailed prescription about judges.
It strikes me as a worrisome interference with the way the judiciary self-regulates, if you will. I am not a lawyer, so I will not presume to judge whether this particular bill would constitute unconstitutional interference in provincial matters. But it strikes me that even if it is unconstitutional, it is neither appropriate nor wise for Parliament to be getting into the fine details of dictating what legal education must include. When we get down to that level of interference, it seems to me that we are setting a precedent that could be used in the future for objectives much less noble.
I’m reminded of a line I read somewhere the other day to the effect that things are fine if your emperor is Marcus Aurelius. Things are not so fine if your emperor is Caligula. I’m not saying the Parliament of Canada is going to be populated by multiple versions of Caligula, but it is always possible for a precedent that was set with the best of intentions then to be used down the line for, as I suggested, less noble objectives.
All of this suggests, colleagues, that I have enough problems with this bill that I cannot support it as written. However, I repeat that I strongly support what I believe to be the objective it is trying to reach. On the horns of this dilemma, therefore, when the matter comes for a vote at second reading, I shall abstain.
Hon. Mobina S. B. Jaffer: I have a question for Senator Fraser, if she will answer a question?
Senator Fraser: I shall try.
Senator Jaffer: Thank you, Senator Fraser, for your presentation. If I heard you correctly, you were talking about the minister reporting on what judges do. Was your discomfort because once you become a judge, you work under the Chief Justice, and it’s only the Chief Justice who manages the judges and not the minister? Is that your angst, that we are mixing an executive function with a separate function of the judiciary, because they are two separate things?
Senator Fraser: That’s a far more learned explanation of my instinctive position than I was giving myself. But essentially, yes.
I don’t think that Parliament has any business requiring the minister to report matters of this nature. I really don’t. We have a judicial system of which we are justifiably proud in this country, and I don’t think it’s the business of politicians to meddle with it. I really don’t.
The Hon. the Speaker: Senator Fraser’s time has expired, and I see two other senators rising, I presume to ask questions.
Are you asking for more time, Senator Fraser?
Senator Fraser: Yes.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Hon. Lillian Eva Dyck: Senator Fraser, I don’t know how judges are selected out of the pool. There’s probably a short list. When judges are selected, it would seem to me that one of the things we really have to look at is the perspective of the people who are doing the selection of who the judges will be. So you may give this training to potential candidates, but what about the people who are doing the actual selection? Do they quiz the judges? Do they say, “What life experiences have you had? What are your views on sexual assault?”
It would seem to me that the people we really should be targeting are those involved in the actual selection of the people who have applied. We can’t just look at the lawyers who are trying to become judges, but we also have to look at the people who are doing the selection.
Senator Fraser: I’ve never been in a position to apply, so I don’t actually know what wringers the applicants have to go through. I do think it would be important to ensure that anyone named to the bench is given thorough training, across a wide range of matters.
They also do have to undergo training now. It is possible that the training on sexual assault matters can and should be improved, but I also have to bear in mind the fact that people can change. Someone — a lawyer or even a judge — might start out with a completely biased and inaccurate view of some aspect of the human condition, but most people don’t get to be judges unless they’re quite intelligent. I have faith that with proper instruction that with proper instruction, a position based on, essentially, ignorance can be changed and that people can grow and realize they were wrong.