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.