Bill C-3 (Historical)

An Act to amend the Judges Act and the Criminal Code

This enactment amends the Judges Act to restrict eligibility for judicial appointment to persons who undertake to participate in continuing education on matters related to sexual assault law and social context. It also amends the Judges Act to provide that the Canadian Judicial Council should report on seminars offered for the continuing education of judges on matters related to sexual assault law and social context. Finally, it amends the Criminal Code to require that judges provide reasons for decisions in sexual assault proceedings.

Judges Act

[Raquel Dancho, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I am very honoured to put a few words on the record about this very important legislation, which really means a lot to the women in the country and sets an example for the world on what we should be doing to train our judges.

I want to congratulate Rona Ambrose, who is a personal hero of mine. It fills me with a lot of pride to know this is a Conservative initiative. This change will benefit so many women for generations to come.

I also believe the training should be beyond judges. We should be educating young men as well. This is not solely an issue with judges, this is something of which all Canadians should be made aware.

For example, I have always been a strong-willed person, but when I was growing up, I was not necessarily aware of what my rights were. Now any man who wanted to take advantage of me, or say anything inappropriate, or touch me inappropriately or whatever might have been done in college or at a party, which I have seen countless times, would rue the day they would dare do that.

However, when I was younger, I did not necessarily understand that I could say no, that it was unacceptable. That education is really important for women and men, the education that they have rights, that they have the right to consent and that when it is no, it is no. This proposed legislation ensures there is a greater conversation in Canada about the right to consent, and the education for judges is just the beginning for this conversation.

I am very much looking forward to seeing what the developments will be in the coming years.

[The Deputy Speaker, Conservative, Bruce Stanton]

The hon. member for Kildonan—St. Paul will have eight and a half minutes remaining in her time when the House next gets back to debate on the question.

It being 2:30 p.m., the motion that the House do now adjourn is deemed to have been adopted. Accordingly, the House stands adjourned until Monday at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 2:30 p.m.)

The House resumed from October 2 consideration of the motion that Bill C-3, An Act to amend the Judges Act and the Criminal Code, be read the second time and referred to a committee.

[Pam Damoff, Liberal, Parliamentary Secretary to the Minister of Indigenous Services]

Mr. Speaker, I will be sharing my time with the member for Saint-Laurent.

Today I speak in support of Bill C-3, an act to amend the Judges Act and the Criminal Code.

This bill has had the support of the House on two previous occasions, but despite all-party support has not yet become law. Listening to debate last Friday, it was obvious the bill continues to serve as an example of ongoing parliamentary collaboration and one which we should all take pride.

I want to start by recognizing and thanking the Hon. Rona Ambrose for her initiative on this critical issue. Her bill was the first legislation to be studied at the Standing Committee on the Status of Women. The collaborative work we did at committee made the bill stronger, and I am happy to see that the government has incorporated amendments from that study into this bill.

At the time Ms. Ambrose introduced her private member’s bill, several high-profile rulings had shown Canadians some judges did not understand sexual assault law and were relying on myths and stereotypes when issuing their rulings.

Members of the House will recall when former Alberta Federal Court Justice Robin Camp asked a sexual assault complainant why she could not “keep [her] knees together” during her alleged rape. Because of his comments, the Canadian Judicial Council launched a review into Justice Camp’s conduct and concluded that he “acted in a manner that seriously undermined public confidence in the judiciary.” Following the review, Justice Camp resigned.

Ultimately, Bill C-3 is about assuring Canadians that judges who are elevated to federally appointed positions have a desire to understand the myths and stereotypes that have been present in Canadian society for far too long. The federal government should appoint judges who acknowledge that learning is a lifelong process and value continuing education. This is a bill created to ensure that no other sexual assault complainant will be subject to condescending, humiliating and disrespectful conduct from a federally appointed judge.

Bill C-3 would amend the Judges Act to require that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context. The bill would also require the Canadian Judicial Council to ensure this training is developed after consultation with those knowledgeable in the field or other individuals or groups it considers appropriate, including sexual assault survivor organizations.

These amendments are designed to ensure that newly appointed superior court judges are fully apprised of the law in relation to sexual assault and on social context. Moreover, the bill is possible because of the already outstanding work the National Judicial Institute, the body responsible for creating judicial education in our country, has done, with help through federal investment, in developing comprehensive continuing education for judges on sexual assault law and its social context.

Finally, the bill would amend the Criminal Code to require that judges provide written reasons or enter them into the record of the proceeding for decisions in sexual assault proceedings.

I have talked about the social context of sexual assault, and I would like to provide a clearer definition of social context.

Quite simply, social context means the immediate social or physical environment in which one lives affects how one sees the world. The experience of an affluent woman who has survived sexual violence will be different than the experience of a woman who is homeless. The experience of a white trans-woman will be different than the experience of a cisgender indigenous woman. The experience of a gay man from Toronto will be different than the experience of a straight woman living with a disability in Amherst, Nova Scotia. The experience of a judge trained in myths and stereotypes about sexual assault will be different than a judge who has never received such training.

Importantly, in the context of the debate on the bill, social context affects how different people view the criminal justice system and how the criminal justice system views them. This is why it is my hope that at committee the bill can be expanded to clearly articulate the need for training, not just on sexual assault law and social context but on the need for training on anti-racism.

This summer, our country came to understand that systemic racism existed in all our institutions. In 2017, at the beginning of the #MeToo Movement, our country came to understand that systemic sexism existed within all our institutions as well.

Jennifer Koshan, professor of law at the University of Calgary, made clear in her testimony at the Standing Committee on the Status of Women that “not only does the law change, but social context can change”. This is why requiring that a candidate seeking appointment to a federally appointed judicial position attest to participating in training related to sexual assault law and its social context is so important.

Bill C-3 addresses a long-standing problem: the influence of myths and stereotypes in sexual assault law. As hard as it is today to imagine, prior to the reforms that began in 1983, a husband could not be convicted of sexually assaulting his wife. Sexual assault convictions required testimony from someone other than the victim. Victims had to raise a hue and cry before the assault and report it shortly afterward or they would not be believed. Victims' sexual reputation and prior sexual activity could be used to attack their credibility.

Reforms were enacted to address these and other evidentiary rules through the 1980s and 1990s. For instance, in response to concerns from survivors and women's organizations, amendments commonly referred to as the ”rape shield” provisions, which govern the admissibility of the complainant's prior sexual activity, were first introduced in 1983 and then amended in 1992. These provisions are designed to protect survivors from the introduction of evidence of their sexual history, which had been used to infer that they were more likely to have consented to the sexual activity in question or were less worthy of belief. The provisions also place restrictions on the use of sexual history evidence for other purposes unless specific criteria are met.

Also in 1992, a clear definition of “consent” in the context of sexual activity was introduced in the Criminal Code and limitations on the accused’s ability to raise a defence of mistaken belief in consent were enacted. The Supreme Court of Canada has provided guidance on the application of the sexual assault provisions, making it clear that consent must be affirmatively expressed through words or conduct and cannot be implied by submission, passivity or a failure to protest.

However, despite the robust legislation in place and the clear rulings from the highest court, myths and stereotypes about sexual assault survivors still creep into the courtroom and into judicial decisions. Identifying solutions to these ongoing challenges has been a priority for our government and, indeed, a matter of ongoing concern in Canada.

Our government introduced Bill C-51 in 2018. With its passage, the changes clarified a number of principles that were already covered in the law, notably, that an unconscious person cannot consent to sexual activity; an accused cannot rely on a mistaken belief in consent where that belief is based on a mistake in law, such as consent obtained through force; sexual history evidence must never be used to infer consent; and, finally, the admissibility of evidence of a victim’s private communications made for a sexual purpose must be determined through the rape shield provisions.

In addition, Bill C-51 provided that victims could make submissions and be represented by counsel in sexual history evidence or rape shield proceedings and that the admissibility of victims’ private records that were in the hands of the accused be determined through a process similar to that of the rape shield and third party records proceedings.

Our government has also modernized the judicial appointment process to bring greater diversity to the bench. During testimony in 2017 at the status of women committee, Professor Carissima Mathen said, “That's been a somewhat unheralded earthquake in the world of judicial appointments.... The innovations that have been done around judicial appointments...have been quite remarkable.”

Canada’s—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Unfortunately, the hon. member's time is up, but I am sure she will be able to add more during questions and comments.

Questions and comments, the hon. member for Sarnia—Lambton.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I very much enjoyed serving with the hon. member when we were on the status of women committee reviewing this bill and other issues, like violence against women and girls in Canada.

It is troubling how long it takes to make progress on this issue. I would ask the member to explain what is taking so long in completing measures to eliminate violence against women and girls.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, I agree with the hon. member: It was a pleasure for us to work together at the status of women committee.

Sadly, this bill was held up in the Senate the first time around by a group of Conservative senators who did not want it passed. Despite the best efforts of the Hon. Rona Ambrose to try to change their minds, they refused to let the bill pass.

There is always more work to be done, and I look forward to working with the hon. member to ensure that we really do make strides when it comes to survivors of sexual assault and those who have survived gender-based violence.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Madam Speaker, I would like my colleague to comment on the importance of passing this bill quickly, even if it is not the perfect solution, because we need to move forward.

Can we pass it quickly, since we agree on it?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, I completely agree with the hon. member. Both times this bill has come to the House all parties have agree to move it quickly. It did get to the justice committee in the last session.

It is beyond time to get this bill passed. While we have more to do, I think it is very important that we work quickly on it.

[Matthew Green, NDP, Hamilton Centre, ON]

Madam Speaker, I would like to first acknowledge the work of the former leader of the official opposition, Rona Ambrose, for bringing forward this most important bill. I would also like to thank the hon. member for Oakville North—Burlington for her incredible introduction to the important social context regarding systemic racism and systemic sexism as they relate to the judiciary.

I want to refer to the comments by the hon. member for Cowichan—Malahat—Langford, our deputy justice critic. He brought to my attention one of the shortfalls of this bill: understanding the only remedy within our legislative authority while respecting the separation of the legislature and the judiciary.

What are the member's comments on the fact that the vast majority of appointed judges are provincial? Have there been any discussions of ways we can encourage existing sitting judges to participate in this most important initiative?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Madam Speaker, the hon. member is absolutely correct. This is something we heard about when we studied the bill at the status of women committee. The majority of sexual assault cases are heard in provincial courts.

Having said that, I think that educating federally appointed judges goes a long way in setting an example for the provincial courts. In terms of amending our legislation, it falls well outside the purview of the federal government to require that education.

I believe the second part of the member's question was about judges who are currently sitting. I know that Justice Kent is very committed to ensuring that the education being put forward for both new judges and sitting judges is robust, recognizing that there needs to be a separation between ourselves and the judiciary.

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Madam Speaker, I am thankful for the opportunity today to speak in favour of Bill C-3, an act to amend the Judges Act and the Criminal Code, an incredibly important bill that could help make Canada a safer place for women and girls in all corners of the country.

I would like to begin by thanking Rona Ambrose for bringing this issue to the forefront in the first place.

This is a bill that I feel extremely passionate about because I am a woman who grew up in what could be considered a rough neighbourhood. I spent the first 28 years of my life in the Chameran neighbourhood in my riding of Saint-Laurent, where I often saw violence take place before my eyes at the park across from where I lived.

As a little girl and later as a teenager and a young woman, I always felt like I was in danger coming home alone after dark.

I took public transit, and the closest bus stop was a five-minute walk from my house. Often I would run home as fast as I could, worried that someone could hurt me at any moment.

If we lived in a world without crime against women, where women were not victimized so much, I would not have felt so anxious on a daily basis at such a young age. So many girls and I are afraid to walk alone and take public transit at night.

Perhaps the craziest part about this is that we are taught from a young age to be careful and not talk to strangers, because they may kidnap us or harm us in some way. We are taught to protect ourselves from the outside world, when we know, or at least we learn if we take the time to study sexual assault data, that in over half of sexual assault cases, the perpetrators are people the victims know. They are family members, friends, significant others, neighbours and acquaintances. When it does happen at the hands of someone we know, we have no idea how to process it or what to do.

We have a culture where people get away with sexual assaults, a rape culture, either because the victims never report these crimes to begin with or because a very small percentage of the cases that are reported result in a conviction. According to the 2014 general social survey, an annual survey that monitors changes in Canadian society and provides information on specific policy issues of current or emerging interests, only 5% of sexual assaults were reported that year. It is important to look into the reasons that victims of sexual assault choose to remain silent, because ensuring that more people come forward is the only way to change the awful statistics around reporting and convicting sexual assault crimes.

One of the main reasons people choose not to testify is a lack of trust in the criminal justice system. They think the court will not believe their story, they feel ashamed or embarrassed, or they believe that there is not enough evidence to prove what happened to them. In some cases, because the attacker may be someone close to the victim, the victim fears or even feels sympathy for the attacker. Many victims have said that getting help from the authorities was just as traumatizing as the attack.

Let's not forget that more than half of the victims who choose to testify lose their case in court. For the 2016-17 fiscal year, only 42% of court decisions in cases of sexual assault involving adults resulted in a guilty verdict.

It is a vicious cycle. At least 95% of cases are not reported, meaning that more than 95% of perpetrators of this kind of violence never receive any consequence whatsoever, and so they continue. At the same time, because such a small number of cases are reported, around 5%, and of that small number, an even smaller number receive a guilty verdict, approximately 2%, women do not feel encouraged to come forward.

Sexual assault is a gendered crime. Women are almost four times more likely to be sexually assaulted than men. Statistics Canada has reported that 30% of women in Canada, compared with 8% of men, have been sexually assaulted at least once since the age of 15. That is 4.7 million women and 1.2 million men who have been victims of sexual assaults. The age group most likely to experience sexual assault is between the ages of 15 and 24 years old.

In three studies completed by Justice Canada with survivors of sexual assault, participants were asked to rate their level of confidence in the police, the court process, and the criminal justice system in general. Two-thirds stated that they were not confident in the system. Those living in the provinces were more confident in the police than those living in the territories.

We must do better. There is a serious problem when victims are afraid to report crimes committed against them, especially when the crimes have long-term effects. Victims of sexual assault can often experience physical, emotional, psychological and sexual repercussions that are different from those suffered by victims of other crimes.

Survivors should be treated with the respect and dignity they deserve, and through Bill C-3, our government commits to taking steps toward that goal. Bill C-3 is designed to strengthen training requirements for newly appointed judges and provide them with important insights into the myths and stereotypes that too often surround sexual assault. It would ensure that judges participate in broader training on social context, including social or cultural factors that may influence and affect an individual's engagement with the justice system. All relevant training would be done through the National Judicial Institute to ensure judicial independence.

In budget 2017, our government provided the Canadian Judicial Council with $2.7 million over five years, and half a million dollars per year thereafter, to ensure that more judges have access to professional development, with a greater focus on gender and cultural sensitivity training. Budget 2018 provided funding for a number of targeted investments to help eliminate gender-based violence and harassment while promoting security of the person and access to justice. This included $25.4 million over five years to boost legal aid funding across the country, with a focus on supporting victims of sexual harassment in the workplace.

These changes are aimed at enhancing the equality, privacy and security of the person rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system, while also balancing the rights of the accused, consistent with relevant Supreme Court of Canada jurisprudence. These myths include deeply rooted beliefs about how “real victims” react to sexual assault and myths about the reliability of women's testimony when they make sexual assault complaints.

In June 2017, the government launched its action plan to address gender-based violence, entitled “It’s Time: Canada’s Strategy to Prevent and Address Gender-Based Violence”.

This co-ordinated multi-sector strategy is based on three pillars, namely prevention, support for survivors and their families, and promotion of responsive legal and justice systems. The government has invested substantial amounts to support the implementation of this whole-of-government initiative to address gender-based violence, co-ordinate existing programs and lay the foundation for greater action.

All this is to say that our government aims to end gender-based violence and has consistently worked toward this end. I strongly encourage all members in the House to vote in favour of Bill C-3, as it helps give a voice to survivors of sexual assault and harassment and helps us make the world a better place for Canadians.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Madam Speaker, in her speech, my colleague mentioned that the reporting of sexual assault cases is very low. What, in her opinion, is the best mechanism to encourage more cases to be reported?

[Emmanuella Lambropoulos, Liberal, Saint-Laurent, QC]

Madam Speaker, in my opinion, if more of the victims of sexual assault who came forward were believed when they pleaded their cases, it would encourage more women to come forward. One of the main reasons women do not come forward is, as I mentioned, the awful statistics regarding sexual assaults and the outcomes of these trials. If our judges were better trained and knew how to pick up on when someone has been assaulted or were more culturally sensitized to these issues, I believe more women would come forward and the system would be more trusted by people.

[Luc Desilets, Bloc, Rivière-des-Mille-Îles, QC]

Madam Speaker, I congratulate the member for her speech. I thought it was heartfelt, profound and deeply personal, which is something we do not often see in the House. I commend her for that.

I think that almost everyone in the House agrees on this bill, but I do want to ask her a quick question. Does she think that the bill goes far enough?