Second reading of Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault)Published on 15 June 2017 Hansard and Statements by Senator Mobina Jaffer
Hon. Mobina S. B. Jaffer:
Honourable senators, I rise to speak to Bill C-337, An act to amend the Judges Act and the Criminal Code.
More specifically, this enactment amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive education in respect of matters related to sexual assault law and social context.
This bill also requires the Canadian Judicial Council to report on continuing education seminars in matters related to sexual assault law.
Furthermore, it amends the Criminal Code to require that reasons provided by a judge in sexual assault decisions be entered in the record of the proceedings or be in writing.
I would like to thank the honourable member of Parliament, Rona Ambrose, who tabled Bill C-337 in the House of Commons. I thank Ms. Ambrose for her work on behalf of Canadians over the years. I have many fond memories of working with Ms. Ambrose on many women’s issues.
Honourable senators, I would also like to thank Senator Andreychuk, the sponsor of the bill.
Honourable senators, I have spent over 30 years training judges on women’s issues. I have trained judges with the National Justice Institute. I have trained judges with the Western Justice Institute with Justice Campbell, Senator Andreychuk and others. I have trained judges internationally. I have felt for many years that there needed to be some kind of legislation to make sure that there is proper training.
Questions often asked in cross-examination of women are, “Why were you wearing clothes like. . .? Why were you walking in a place that is dangerous? Why did you do this? Why did you do that?”
We would ask a judge to play-act with us. We would ask him to dress in a certain way and pretend that he was walking on an unsafe street. Then we would ask cross-examination questions like: “While you were walking in this area, why were you wearing an expensive suit? Why were you wearing a RADO watch? Why were you wearing expensive shoes? Why did you have such an expensive briefcase? You were asking to get robbed.”
When we did this training, many judges afterwards said that for the first time they realized that they would ask the questions of the women or would let the prosecutor ask questions of the women as to how they were dressed, where they were, what they were doing, and they would not bat an eyelid. When they went through this training, they realized that it is not appropriate to ask women how they were dressed and what they were doing. The more appropriate question is: Why did the man sexually assault the woman?
So I absolutely agree with Ms. Ambrose’s bill. I agree with the goal of the bill, but I have some challenges with what is in the bill, and I’m sure this will be studied at committee.
Before adopting the bill, senators, I would say that as a chamber of sober second thought we have to consider all the challenges. Therefore, I would like to address some of the issues raised by experts on Bill C-337.
As you know, the House of Commons voted to fast track this bill to the Standing Committee on the Status of Women. Many experts who appeared before the committee raised concerns with Bill C-337. The first concern raised by the experts is that every lawyer who applies to become a judge must seek training before being appointed.
According to the Canadian Superior Courts Judges Association that represents approximately 1,000 judges who serve on the Superior Courts and the Courts of Appeal of each province and territory, as well as on the Federal Court, the Federal Court of Appeal and the Tax Court of Canada, I quote:
Judges who are federally appointed and who are subject to the Judges Act serve on a variety of courts, some of which have no criminal jurisdiction whatsoever.
The overwhelming majority of criminal cases are heard in the provincial courts, the judges of which are not subject to the Judges Act.
Comprehensive educational programs are currently provided to newly federally appointed judges and continuing judicial education is available to all judges, who are able to pursue their education, including social context training, in the areas of law in which they judge.
The Barreau du Québec raised the same issue when they appeared before the House of Commons committee. I quote:
The Barreau du Québec supports any measure to improve training for the judiciary, but it is concerned that the proposed amendments would not have the intended effects with respect to the pursuit objectives.
The scope of the bill does not appear to consider the fact that cases involving federal offences are generally dealt with by provincial courts.
Which means that this law will not apply to most judges appointed by provincial courts and that hear mostly criminal cases.
Furthermore, the bill creates obligations for certain members of the judiciary who will never have to deal with such cases.
Bill C-337 applies exclusively to federally appointed judges, in superior courts, appeal courts, the Federal Court, the Federal Court of Appeal, the Tax Court of Canada and the Supreme Court of Canada.
However, in practice, the vast majority of criminal offences are dealt with by the provincial courts.
According to Statistics Canada, in 2014-15, 99.6 per cent of the cases involving federal offences were handled by provincial courts.
Finally, the Canadian Judicial Council, a federal body created under the Judges Act with the mandate to promote efficiency, uniformity and accountability and to improve the quality of judicial service in the superior courts of Canada, also raised concerns. I quote:
[Canadian Judicial Council] policies now provide that it is mandatory for newly appointed judges to attend a seminar designed for new judges, which includes education on sexual assault issues as part of the social context component of the program. [Canadian Judicial Council] policies also provide that judges should devote 10 days per year to continuing education.
The [Canadian Judicial Council] proposes, as an alternative, that applicants for appointment as a superior court judge commit, as part of the application process, to abide by [Canadian Judicial Council] policies in respect of judicial education and, specifically, to undertake to participate in ongoing social context education, including education on sexual assault issues.
That being said, this piece of legislation would only apply to newly appointed judges and would not be applied to already sitting judges.
The second concern raised is that it amends the Criminal Code by adding to section 278.91 that a judge must enter reasons in the record of proceedings or provide them in writing.
The preamble of the bill says that requiring written reasons in sexual assault proceedings would, and I quote:
. . . enhance the transparency and accountability of the judiciary.
According to the Canadian Bar Association’s criminal justice section:
The law already requires proper reasons from judges, whether written or oral, and resources are dedicated to ensuring the practical application of this requirement. For example the National Judicial Institute provides significant training in judicial reason writing and in the delivery of oral reasons.
The current law also requires trial judges to give reasons that allow meaningful appellate review of a conviction or acquittal, so the appeal court can determine why a ruling was made.
The Supreme Court of Canada has outlined detailed requirements for giving reasons, whether written or oral, in all cases.
In R v. Sheppard, Justice Binnie, writing for a unanimous court, listed 10 vital guidelines for trial courts.
Justice Binnie wrote:
The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.
This Supreme Court decision illustrates the importance of judicial reasons to the criminal process and underscores the duties already imposed on judges. Written reasons generally take longer to craft than oral judgments.
Requiring judges to give written reasons for all of a particular group of cases could add to court delays at a time when delays in the justice system, in contravention of the presumptive time limits, can mean charges will be stayed.
It would not be in the public interest to add unnecessary barriers to timely determination of criminal charges.
Honourable senators, the last challenge I would like to address in regard to Bill C-337 is the judicial independence of our judges, by amending paragraph 60(2)(b) and 62.1(1) of the Judges Act.
According to the Canadian Superior Court Judges Association, the principle of judicial independence requires that judges be unfettered in the independent and impartial exercise of their judgment in fulfilling their judges’ function.
That being said, the Barreau du Québec testified:
The obligations imposed on the Canadian Judicial Council could compromise judicial independence and, ultimately, intrude on provincial jurisdiction over the administration of justice.
By requiring the council to report on training taken by members of the judiciary, including the number of sexual assault cases heard by judges who have never participated in such a seminar, the concern is that the bill will threaten judicial independence.
Judicial independence is one of the cornerstones of Canada’s democratic system, it is critical to the public’s perception of impartiality with respect to the judicial process.
That is why the Constitution Act of 1867 guarantees independence and the separation of the judicial, executive and legislative branches.
Specifically, judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law.
When Parliament imposes requirements on the judiciary related to its duty, it risks compromising judicial independence.
Institutional means that no one can interfere with how the courts manage the litigation process or with the exercise of judicial functions by the judiciary.
The Canadian Judicial Council shared the same point of view and added:
The council is concerned that amending paragraph 60(2) (b) of the Judges Act may be interpreted as a requirement set by one branch of government regarding training requirements for judges.
This would raise a concern in terms of independence of the judiciary, particularly if one considers the consequences for a judge who fails to fulfill their obligations to maintain and enhance their knowledge and skills to ensure they discharge their duties of their office.
The Canadian Judicial Council added:
The council is concerned that any requirement to identify, directly or indirectly, which judges participated in which courses could be problematic.
In particular, proposed paragraph 62.1(c) proposes that the number of judges who never participated in a sexual assault law seminar and who heard a sexual assault case be identified for each of Canada’s superior courts.
The logical outcome of gathering such data would be to identify specific judges, over the long-term, for purposes of drawing conclusions about the nature of the decisions they issue in sexual assault cases.
This is, in other words, a judicial performance evaluation tool based on an assumption that attendance at a course guarantees competence.
The Canadian Judicial Council is unable to support a proposed reporting requirement that would identify the courts and the number of judges from these courts that participate in specific education programs and who hear or do not hear specific types of cases.
We are of the view that such requirement would infringe on judiciary’s independence to maintain control over judicial education and judicial discipline matters.
Senators, as I said, I absolutely agree with the goal of this bill. My concern is that we can teach the words to people so maybe they will not repeat the words. But the real work that needs to be done is to look at our culture, a culture where we objectify women. That is our challenge.
I look forward to this bill going to committee and the committee having further discussions to see how we can strengthen this bill.
Honourable senators, I have set up the three main challenges we face with Bill C-337. We as senators cannot make take these matters lightly. We must consider every possibility so this bill can achieve its main objective, which is to educate and protect all Canadians.
I encourage every senator to study this bill carefully.
Thank you very much.
Hon. Joseph A. Day (Leader of the Senate Liberals): Will you take a question, Senator Jaffer?
Senator Jaffer: Yes.
Senator Day: Thank you. I would like you to clarify a portion that concerns me and then maybe you could tell me if that has been highlighted as a concern. From what I’ve heard you say, and from what I’m reading, is that before a practising lawyer can be appointed as a judge or considered for appointment as a judge, he or she must have had a course on sexual assault.
That’s fine for Montreal, Toronto and Vancouver. There are many practising lawyers in smaller communities.
The Hon. the Speaker pro tempore: Senator Jaffer’s time has run out.
Senator Jaffer: Five more minutes?
The Hon. the Speaker pro tempore: Honourable senators, do you agree, five more minutes?
Hon. Senators: Agreed.
Senator Day: A lot of practising lawyers in smaller communities, who might make good judges for those smaller communities, won’t have had the opportunity because the courses wouldn’t be given. Has that been highlighted as a concern?
I understand that once appointed then the judicial council, the government, can provide the courses because they are then judges. That’s fine. It’s qualifying to be appointed, a precondition that I’m concerned about.
Senator Jaffer: Senator, the best way I can explain is to say that is one of the things that really troubles me about this bill. The best way I can explain it is under the new selection of senators process, when senators apply, they don’t go and tell the whole world that they’re applying. There’s no course to become a senator. We all do it quietly. We don’t want the whole world to know we have applied.
What are we doing to new people who want to apply? They have to go to a sexual assault course. There’s nothing wrong in doing a course and learning about sexual assault. But if you say to everyone I’m doing this course and then I will apply to become a judge, what does it do to your partnership prospects? How does your boss handle it? How do your colleagues see you when you don’t become that judge?
I have had so many lawyers call me and say, “Come on, Mobina, get serious, you think we’re going to do this course and then my partners will know I’ve applied and my friends will know I’ve applied.” No one has an issue in doing the course. It’s a good thing. But at least the minimum we should do is have the course after the person is nominated, not before.
Senator Day: Thank you.