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

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Mr. Speaker, the collaboration that we are seeing on Bill C-3 is great to see and it reflects the reality of where we are as a nation. We want to move forward on breaking down barriers, especially for systemic racism and systemic discrimination, and we want to make sure that survivors of sexual assault have the confidence to come forward, and that their stories will be listened to in a manner that is appropriate. I wish to thank the justice committee for its great work on this and the Minister of Justice for his great work on Bill C-3.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I am grateful for the opportunity to be here today to address Bill C-3. It has gone through committee and is now back in the House of Commons, and we once again get an opportunity to speak to it.

I want to point out that this is a pleasant departure for the Liberal Party in supporting the bill. In the past the Liberals have typically been odious, pointing out errors that the justice system gets. For them to give clear instructions to the justice system is refreshing. I am excited to see that they are supporting the bill, that they have moved it forward and that we have the Government of Canada pursuing education of judges.

We have seen in the past some horrendous crimes that have been committed in this country, and we have seen sentencing that does not seem to fit the crime. The sentencing does not provide an incentive to not do the crime again. I am talking particularly in the area that I know best, around human trafficking. I have a series of examples in which folks were convicted of trafficking people and the justice system was incapable, or folks in the justice system were rude about what was going on. It led to people being concerned and not willing to come forward when they had a crime perpetrated against them.

I remember one situation in which a gal was talking to me. She had come forward and pressed charges against an individual, but the guy was out on bail very quickly and was standing at the end of her driveway making threatening gestures such as slicing across his throat. This is a justice system that was supposed to be there to protect her. I am happy to see the government supporting the bill to provide judge training, and it is important that we get it right. The justice system should get it right.

I also want to note that I will share my time with the member for Mégantic—L'Érable, a great colleague of mine. I also had the opportunity to tour him across the promised land. He is from Quebec and I am from Alberta. I know there is a bit of rivalry there, although it is more imagined than real because when I had him, a Quebecker, in Alberta, I stuck him in a trench of a pipeline and showed him what pipelines were all about. He was impressed with the size of the farms that we have where I come from. He is the member of Parliament for the maple syrup capital of Canada, and I am the member of Parliament for the honey capital of Canada, which I think is pretty sweet, either way. I do take a little honey in my coffee because I think that makes me a little sweeter all the time.

We have seen human traffickers get off with sentences that were in many cases less time than they had spent trafficking their victims. We have seen traffickers who trafficked multiple girls for several years get months in prison. We also see traffickers, who have made hundreds of thousands of dollars trafficking people, get fines of $5,000. It is important to me that the justice system provides justice and deterrence. It says in the Bible that the law cannot save us, and that is true. The words on a piece of paper will not in the instant save someone, but we do try to rectify these situations after the fact. Our justice system is to bring justice to the situation. We see in the bill the acknowledgement that our justice system does not get it right all the time.

From time to time, things change, things come to light, society changes and society sees the need to shine a spotlight on particular issues. That is what this bill does. I am pleased to support the bill.

However, this is a departure from what we have seen in the past. We have seen the Liberals hesitate on bringing justice through the justice system for human trafficking victims. When it comes to consecutive sentencing, we saw a bill that was first introduced by a Bloc member, then was introduced by an NDP member and it was finally passed under a Conservative government. It was brought into force by the Liberal government.

However, before the bill was brought into force, the government waited for two years to pass Bill C-75. It could have been brought into force immediately when it took power back in 2015, but the government waited in order to pull out consecutive sentencing, because, lo and behold, if a trafficker had to go to jail for an extended period of time, that would not have been right.

The Liberals delayed the passing of that bill. While it had originally been introduced in 2013, it took all the way until 2017 to be reintroduced. We see that when the bill was finally brought, the Liberals had pulled the consecutive sentencing out and went back to concurrent sentencing, saying if someone had trafficked one girl, they were going to jail for a maximum of 10 years, and if they had trafficked 10 girls, they could serve those sentences concurrently. Regardless of how many people they had trafficked, they would serve the sentences concurrently.

That is not justice. That is not bringing people to justice. That is not providing any deterrent. Perhaps the Liberals will stand up and ask me questions about this, and maybe they will clarify whether they actually believe that deterrence should be something that is part of our justice system. Do Liberals believe that deterrence is part of our justice system?

At the end of the day, serious penalties for this type of sexual violence is important. However, it is more important to provide real protection for victims who endure years of trauma and take years to recover, knowing that their trafficker could be out and back on the streets before they have been fully integrated back into society.

Today we see that judges are still handing down human trafficking sentences that do not reflect the seriousness of the crime. The government refuses to send a message to traffickers by mandating serious penalties.

I propose that the government, at the very least, consider adopting a similar approach to human trafficking as it did on this bill. Judicial training on human trafficking law would be unprecedented. Maybe we could go beyond this. Maybe we could look at special courts. I know there are a number of special courts in Canada. We see drug courts where there are two doors. If someone is convicted of a drug crime, there are two doors. One is rehabilitation; the other is jail. People can choose which door they want to go through. If they do not abide by the conditions set when they cross the first door, then they are switched to the second door.

Those kinds of things have been successful in Canada. I think Ontario is the province that has been pushing that the most. I think that is great. In Alberta, we have the child advocacy centre. It is not a special court, but it is a centre where children of sexual abuse come. There are complete wraparound services. It is not a sterile institutionalized facility. There are puppy dogs wandering around. There are nice trees. The whole place is a place to put people at ease.

All of the government services that come into play in a case of child abuse come to the child, rather than sending the child through multiple different institutions. That, again, has been a great model and is something that we could see across Canada, in terms of dealing with human trafficking victims.

While I support the government's initiative around the bill, I hope that we can see some of these other things that Conservatives are pushing for that get our justice system to provide justice but also, on the front end, prevent these crimes from happening by providing a deterrent.

It is always an honour and privilege to rise in the House of Commons.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Mr. Speaker, one of the things that has been talked about in the third reading and a bit in second reading is how wonderful it is to see the unanimous support for a good idea. What would make the idea even better is if we were to see more and more provinces look at their appointments.

Could the member share his thoughts on what role we could have in encouraging this? I believe Ontario has moved forward and possibly another province has. What are his thoughts on that?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I know appointments are a very important part of the judicial system. What I always say about the judicial system is that we have to get it right. If the average Canadian thinks the case is being judged fairly, then we are getting it right. If we are not getting it judged right, then we have a problem and we need to have a chat with the judges, which is what the bill would do.

As to provincial jurisdiction, I am always concerned about treading on provincial jurisdiction. I have close colleagues who work in provincial legislatures and I talk to them about the bills I am working on, the ideas I have and they do the same. On appointments and training for judges, we should be working hand in glove with the provinces.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Speaker, I congratulate my colleague for his excellent speech.

The Quebec bar has expressed some concerns about Bill C-3, particularly because the vast majority of criminal offences are handled in provincial courts.

Training for judges is a good idea, but the Quebec bar has pointed out that many of these cases will be handled by provincial judges and not federal ones.

Does my colleague think that this could create some irregularities or lead to an uneven administration of justice across Canada?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, no, I do not think that will be a problem at all. The bar association can step up for sure. I believe it represents both federal and provincial lawyers. The bar associations could provide this training, which would be more useful than us having to pass bills on that.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I want to thank the member for his work on human trafficking, which is so important.

My question is on accountability. We seem to have an issue with accountability. He mentioned some of it with the sentencing. With respect to Bill C-3, which I support, how does the member propose there will be accountability for the justices so they actually follow through with what we want them to do in the bill?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, that is exactly the issue all the time. If we go back to the appointments, which the member from Winnipeg talked about, this kind of training sends a message to the judicial system as to our expectations in this place.

As for accountability, there is an independence between this place and the judiciary which we must always appreciate. There can be a conversation about it, but that is always going to be a challenge. I do not see a great accountability structure at this point, so we really just send a message and hope that is the case. It goes back to appointing the right people. Appointments are very important.

I know the member for Kootenay—Columbia is right next door to Alberta. I like to call him an honorary Albertan. Any time that part of the province wants to join Alberta, come on down. However, I want to point out that the Alberta government has aggressively pursued anti-human trafficking measures. It has come out with a great strategy on ending human trafficking in Alberta. I hope the federal government can get behind this and bring in a national strategy that works for all Canadians.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, it is an honour for me to be here this evening. First, I would like to commend and thank my colleague from Peace River—Westlock for his excellent speech. I was impressed by the pipeline construction I saw when I had the opportunity and the pleasure to visit his riding. Perhaps we could find a new use for pipelines. We could send maple syrup from the beautiful riding of Mégantic—L'Érable to his riding via pipeline in the spring and then Mégantic—L'Érable could get delicious honey from his riding the same way in the fall. That would be an excellent opportunity for trade between our two ridings.

It is with honour and enthusiasm that I rise today at third reading of Bill C-3, which is also known as the just act. I hope it will help women who are victims of sexual assault to regain some trust in the justice system and encourage them to come forward when they are assaulted.

I would like to remind members that this is the third time that the House has tried to pass the just act. We must give its original author, the Hon. Rona Ambrose, all the credit for bringing before the House the serious issue of the lack of training of some judges who hear sexual assault cases.

When introducing the just bill, which was private member's Bill C-337 at the time, my hon. colleague Ms. Ambrose said:

Mr. Speaker, I am honoured to stand in the House to introduce a bill to address the need to build more confidence in our judicial system when it comes to the handling of cases involving sexual assault and sexual violence. Too often, those involved in these cases come away with the feeling they have experienced not just a judgment on their case but a judgment on their character.

On another occasion, she gave more detail to explain why women are afraid to file a complaint. She talked about what survivors go through in the justice system and the repercussions it has on them:

We have people who have backgrounds in corporate law, and oil and gas law who are overseeing some of these trials. That's not good enough. They need to have the training in criminal law and particularly in these kinds of cases, I believe. We know from research that's conclusive now that these kinds of crimes and this kind of trauma, especially at a young age, have a massive impact on girls and women. We know that women who experience violence are at least twice as likely to suffer from mental health issues, and they deal with these issues for the rest of their lives.

Clearly, the justice system is frightening for women who are victims of sexual assault. The statistics are clear: too few women report the assault, even fewer go to trial, and an infinitely small number of those trials end in convictions.

As I mentioned in my speech at second reading of Bill C-3, the numbers do not lie: 83% of sexual assaults go unreported. Of the remaining 17% of cases, one in five gets dropped, while the other four are subjected to intense scrutiny, leaving the victims caught in the middle of a difficult and stressful process that unfortunately has only a small chance of success. In three out of four cases, the proceedings are stayed, and just one in five will go to court. One in 10 cases ends in a conviction resulting in a fine or jail time.

Can we seriously ask women who are victims of sexual assault, especially women from disadvantaged, racialized or indigenous communities, to trust a system that finds it so difficult to recognize the crimes committed against them and punish those responsible?

Let me talk about a study I read. The topic of this action research study was “Female victims of violence and the criminal justice system: experiences, obstacles and potential solutions”. This study was conducted by several groups in Quebec and uncovered several reasons for this harsh reality.

The women interviewed for this study revealed the reasons they were fearful of the justice system. These include a lack of trust and the fear of not being believed; the perception that the safety of victims cannot be guaranteed throughout the process; and the influence of comments made by justice system stakeholders and the women's friends and families, who, according to studies, express doubts about the women's ability to navigate the justice system.

From the outset, the women are clearly told that they may not be able to see the process through and that it will be very difficult. In short, many obstacles are placed in their way from the beginning.

Some of the other reasons that came up include the need to take care of themselves first and to manage everyday life in the wake of sexual violence; the anticipation of the consequences of the legal process on the women and those around them; a lack of information on the legal process; and the fact that women know that assailants or perpetrators of sexual violence will get fairly lenient sentences.

The study went even further. Women who had gone through the justice system spoke about the obstacles and issues they had faced, such as the dearth of knowledge about female victims of violence; the continued existence of bias; being made to feel guilty by people within the justice system; the feeling that violence against women is minimized because of the very common legal procedure of sentence bargaining, during which the Crown and the defence negotiate sentencing; a perception that the accused has more rights than the victim; and lengthy delays.

I encourage my colleagues to read this study. They can contact my office or just google it. This study helped me better understand what women face after experiencing sexual violence.

Bill C-3 is not a magic wand that will change everything all at once, nor will it single-handedly change the statistics, but I think judges are the cornerstone of our justice system. Canadian judges must have all the tools they need to deal with every possible situation. If we give judges access to sexual violence training and require new judges to take the training, the entire justice system will clearly be better off. I sincerely believe it is high time Canada took action on this issue.

To ensure a better understanding of sexual assault cases, a new law concerning judges' education just came into force in August 2020. Judges will be required to attend specific training provided by a judicial training institute. Amnesty International and SOS Viol, a victim support organization, have called this a major victory, saying: “This new law is a positive and important step in the right direction. It addresses one of our main concerns in the fight against rape and sexual violence in Belgium: the many gaps in the training of those on the front lines, particularly in the judiciary.”

In France, the training course on sexual violence created in 2016 is five days long and addresses relevant issues pertaining to this specific type of violence.

In England and Wales, a tracking system was implemented that requires Crown Court judges to take a specialized training course before being able to hear sexual violence cases.

After all these years of waiting and all of the opportunities that we have had to pass Ms. Ambrose's bill, it is time to finally take action and pass this bill so that it becomes a reality.

However, I heard the questions that were raised throughout today's debate and I know that this bill will apply only to judges appointed by the federal government.

Although it is an area of provincial jurisdiction, I want to say a few words about training for Quebec court judges because they are responsible for the majority of the province's sexual violence cases. The Quebec Court has a six-page training program, which provides a very good summary. The Quebec Court and the Quebec Judicial Council are responsible for this continuing education, which is an ethical obligation for these two institutions.

The Judicial Code of Ethics states that judges have an ethical obligation to acquire and foster the knowledge and skills they need to carry out their judicial functions. However, I had to read through until the fourth page of the document to learn that the Court of Quebec is working on a special project to give judges specialized training on preparing rulings. However, there is no mention of training on sexual violence there.

The very last page mentions training on the rule of law and also on the society in which these rules are applied. I quote:

With respect to sexual offences, the training deals primarily with the evolution of jurisprudence and legislation regarding the notion of “consent”, the admissibility of means of defence and the tests for ensuring that myths or stereotypes do not influence the assessment of the credibility of complainants.

Once again, the training is not mandatory—

[The Deputy Speaker, Bruce Stanton]

Order. The hon. member's time has expired. We will now move on to questions and comments.

The hon. member for Jonquière.

[Mario Simard, Bloc, Jonquière, QC]

Mr. Speaker, my colleague referred to a study he consulted that demonstrates how certain myths and stereotypes are sometimes perpetuated in the justice system. That is what I took away from it. As I said earlier, it would be good for judges to get away from these outdated cultural constructs.

I do not want to dwell on this too much, but to continue my reflection, I have to wonder whether certain members would not benefit from this kind of training. I am thinking about Bill C-6. As a reminder, that is the bill on conversion therapy. Certain members had some reservations.

I would like to hear from my colleague on that. Does he think certain members should take that training in order to better understand the realities facing sexual minorities?

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, on behalf of my two daughters, my wife and all the women of Mégantic—L'Érable, Quebec and Canada, I would say that it is of the utmost importance to support Bill C-3. I hope it will receive royal assent as quickly as possible. I am also in favour of Bill C-6, which I will support without any hesitation.

However, what I am thinking about the most right now is the fact that this is the third time that Parliament has tried to adopt the Hon. Rona Ambrose's bill. This is not the time to be playing politics. It is time that we moved forward.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, some of the debate today has focused on the inclusion of language related to systemic racism and the importance of education and training for judges, including training specifically on systemic racism.

I am wondering if the member supports that inclusion and, if so, why he thinks it is important to have it in the bill.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

That is already in the bill. My colleague is well aware of that because the committee proposed amendments to the bill and thus the changes are already included.

As I mentioned, there are problems of sexual violence, especially in racialized, underprivileged and indigenous communities. It is important that any form of sexual violence be well understood by judges. That is the initial objective of Bill C-3, and I support it 100%.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Mr. Speaker, judges shape society, so it is important that judges understand the society within which they work and, indeed, the society in which those people who appear before them in court live, work and breathe. I am thinking of accused people and witnesses, of course, but I am thinking particularly of victims.

Sadly, that has not always been the case in the Canadian court system, and this is especially true in sexual assault proceedings. There have been instances where victims have felt mistreated, disrespected and not treated with the dignity they deserve as human beings, and that is not acceptable.

The result is that many people do not bother to report cases of sexual assault. According to Statistics Canada, 95% of sexual assault cases are never reported. Fully two-thirds of sexual assault victims surveyed by the justice department say they have no confidence in Canada's court system.

One of my constituents, Lia, wrote a very thoughtful email to me, and I will highlight a couple of sentences from it. She said, “For far too long, survivors of sexual assault have had to deal with a justice system that does not treat them with the dignity they deserve. Many victims of sexual assault decide not to file a complaint because they are afraid of being mistreated and humiliated. That is why most sexual assaults committed in Canada are not reported to the police.... This must change. Survivors of sexual assault have the right to be treated with respect and dignity.” Sadly, that has not always been the case in the Canadian court system. I agree with Lia that this must change.

What has gone wrong?

The Canadian criminal justice system is based on many centuries of common law tradition coming out of England. It is a legal structure built around an adversarial system where the Crown advances a rigorous prosecution and the defence an equally rigorous defence. The accused always has the presumption of innocence in their favour, so the hurdle for the Crown prosecutor to overcome is a very high one. That is the system we have adopted, and that is what we say is best for society.

However, the result is that victims are often treated very badly, in their opinion. The accused has the right to meet their accuser in court and to subject the evidence to rigorous cross-examination, which will often involve drawing the victim's reputation into question. Sometimes, despite the prosecution's best efforts, the accused person is not convicted and, unfortunately, the victim's reputation is left in tatters.

The risk associated with our criminal law system is far from perfect as it is, but we say it is the best way to conduct criminal trials because it is more important that innocent people are not convicted than it is that guilty people are left to go free. However, the sad result is that in many sexual assault cases it is the victims who are revictimized in the process, and that is not acceptable.

The bill before us is about the education and training of judges, and it is very timely. It is about rebalancing the right of the accused to have a fair trial with the right of the victim to be treated with dignity and respect. It is about ensuring that trust is maintained in our justice system, which is important not only for the victim but for all of society, and that survivors of sexual assault are treated respectfully. It is about judges being equipped with the knowledge and skills they need to run fair trials. Ultimately, the bill is all about maintaining that the administration of justice is not brought into disrepute by poorly run trials. We need educated judges.

All parties in the House agree on this, so why are we debating it? Well, there is a little thing called “judicial independence”. It is a little thing, but it is fundamental to the way our society operates. Politicians do not tell judges what to do. Judges need to be independent. We set laws, but we do not tell judges how to run their courts and how to make decisions. That is up to them. This is so fundamental to our judicial system and our western democracy. Sadly, it seems that some elected officials have not learned that lesson.

From the sounds of it, everybody in this House is in agreement that this bill should become law. That is not true of all people. There are some academics and jurists who say the bill is going in the wrong direction and is undermining judicial independence. What about that? With Bill C-3, are we stepping over the line of judicial independence? When we consider that question there are a couple of things to keep in mind.

First, not every lawyer who is appointed to a superior court will have had experience in their careers up to that point with actually working in the criminal justice system, and certainly not with any sexual assault proceedings. Some will have practised in other fields, such as commercial law, tax law, intellectual property law or, like I did, corporate law.

Therefore, I would submit it is important and completely appropriate that judges should undergo special education in the field, as is stated in Bill C-3, including, “instruction in evidentiary prohibitions, principles of consent”, which is so fundamental to sexual assault law, “and the conduct of sexual assault proceedings”. I could not agree with that more.

Another thing to keep in mind when we are talking about whether or not this bill steps over the line of judicial independence is that other countries, and some of the previous speakers have alluded to this, require their judges to have special training before they become judges. They have to go to judge school. We have not done that here in Canada. We say that if one has practised law for 10 years, regardless of whatever field it is in, he or she is now qualified to become a judge. That is why it is so important that we have the special education for judges.

One more thing we should keep in mind when we ask whether Bill C-3 is stepping over the judicial independence line, is that the bill states it is the Canadian Judicial Council, which is run by judges for judges, that is the organization that will decide what the content of the courses is and how they are to be connected. Therefore, this bill does not tell judges what to do or how to decide cases. It does not tell them to have a higher rate of conviction. It simply tells judges to get themselves educated because that is what society expects of them. It is certainly what victims expect.

If we hope that more victims will report cases of sexual assault, which I think is fundamental to our court system working properly, then I think we need to do whatever we can to build that confidence back into the minds of the Canadian public that our court system is fair to victims of sexual assault.

The bill also talks about the requirement that judges in sexual assault proceedings must give written reasons. Does that go too far? I would submit that it does not because the victim, the accused and their lawyers should have the right to review the reasoning of the judge, how he or she came to that decision.

Also, I would say the requirement that judges should give written reasons will inevitably result in more guarded and well-considered language when judges write up their decisions. That is good for everyone involved, including the victim, the accused, all of Canadian society and, importantly, the credibility of our criminal justice system.

When we weigh the risk to judicial independence introduced by Bill C-3, which I think is a very small risk for the reasons stated, against the risk of our courts being disrespected, which is a real and present danger, most Canadians will support the purpose of intent of Bill C-3. That is why I thank the people who have written to me, including Lia, encouraging me to vote in favour of this bill.

This bill is a step in the right direction to rebalance the interests of the accused to a fair trial and the complainant to respect and dignity. As a Conservative, I am proud that this bill was initiated on this side of the House by our former colleague Rona Ambrose. I thank the Hon. Rona Ambrose for introducing this.

I have a quote here from Ms. Ambrose, which I think is really interesting. She said:

...like me, many Canadians would be surprised to learn that a lawyer does not need any experience in the sensitivities of sexual assault cases to become a judge overseeing these types of challenging trials.

As I said earlier, this might be the first sexual assault case that a judge has ever heard or been involved in, in a criminal law setting, much less in a sexual assault proceeding. The judge, prior to becoming a judge, might have been a tax lawyer or dealt with intellectual property law.

I am a little less surprised than most Canadians about this gap in judges' education. In this debate, we have talked about new judges who have little or no experience in sexual assault proceedings. That creates challenges, obviously. However, at the other end of the spectrum are judges who, as lawyers, practised solely in the field of criminal law, maybe even specializing in sexual assault cases and, when they become judges, have a first case of complex commercial law.

I think there is something missing in judges' education. That is where I am going with this. Bill C-3 is a step in the right direction. The field of law is so broad that not even the smartest, most educated and well-intentioned judge could know it all.

As a lawyer, I must undergo continuing professional development every year in order to maintain my practice licence. I would submit that the same should apply to judges, and maybe even more so to judges because they are societal influencers. They need to understand the society within which they work.

I am confident that our judiciary, in consultation with appropriate stakeholder groups, will develop an effective, responsible, continuing education program for judges, and that judges will respond favourably to Bill C-3. I will be voting in favour of this bill.