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Judicial Accountability through Sexual Assault Law Training Bill - Second Reading

Honourable senators, I'm honoured to rise today to speak at second reading of Bill C-337, the judicial accountability through sexual assault law training act.

Bill C-337 was introduced in the House of Commons by the Honourable Rona Ambrose, Member of Parliament for Sturgeon River—Parkland, earlier this year. The bill was sent to the Standing Committee on the Status of Women, where efforts were made by all parties to improve and advance the bill in an expeditious manner. Upon its return to the House of Commons, the bill once again received unanimous all-party support.

I wish to thank the Honourable Rona Ambrose, whose resolve has brought to light the critical need for this legislation in Canada. Her dedication to advancing the rights of women is reflected in the pages of this legislation.

Bill C-337 is a concrete legislative response to a serious and concerning problem affecting the credibility of our justice system; that is, the treatment of victims of sexual assault before our courts of justice.

For those of us sitting in this chamber today, it is certainly disheartening to hear that, in 2017, there are still some judges who are presiding over sexual assault cases with a total misunderstanding of what constitutes sexual assault and the burden it puts on the lives of victims. This lack of understanding signals to victims of sexual assault that they should keep their suffering secret instead of denouncing their aggressor.

This is the wrong signal to send to victims — victims who often happen to be witnesses. In fact, over the past few years, several troubling cases have surfaced in the media or directly from the courts by those who scrutinize and work with victims from the courts.

For the sake of brevity, I will only recall one case, and that is the controversial case of former Justice Robin Camp, who became the subject of a removal hearing before the Canadian Judicial Council. Let me quote some of the findings of the Canadian Judicial Council regarding the conduct of this judge.

At paragraph 17, the Council notes:

That conduct included asking the complainant, a vulnerable 19-year-old woman, "why didn't [she] just sink [her] bottom down into the basin so he couldn't penetrate [her] and "why couldn't [she] just keep [her] knees together," that "sex and pain sometimes go together [. . .] — that's not necessarily a bad thing" and suggesting to Crown counsel "if she [the complainant] skews her pelvis slightly she can avoid him."

The committee found that the judge made comments or asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality and bring integrity to sexual assault trials. It also found that the judge relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.

These findings shed light on a terrible reality: the lack of training and understanding in cases of sexual assault.

Bill C-337 would create an eligibility criterion applicable for the appointment of judges of a Superior Court in any province. A barrister or advocate applying for a judge position would need, to the satisfaction of the Commissioner for Federal Judicial Affairs, to have a completed, recent and comprehensive education in sexual assault law.

Bill C-337 is premised on the fact that education is the key to instilling the appropriate conduct by judges hearing sexual assault cases.

In fact, most judges, and lawyers for that matter, welcome training. As societies change, as laws change and become more complex, continuing education is the responsibility of all.

The federal statute, the Judges Act, as well as the Constitution Act, provide the basis for the appointment, removal, retirement and remuneration, including matters such as pension, of federally appointed judges.

The Judges Act establishes the Canadian Judicial Council, the group of senior judges who govern the collectivity of federally appointed judges. The act states that the members of the Canadian Judicial Council consist of the Chief Justice of Canada, as well as the Chief Justices and Associate Chief Justices of each Superior Court or branch or division of each province or senior judges of the territories.

Section 60(1) of the Judges Act states that the objective of the Canadian Judicial Council is to ". . . promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts."

Currently, the Canadian Judicial Council contracts out funding to the National Judicial Institute to provide training to judges.

Currently, ongoing training is optional. There is no mandatory requirement for a judge to take training before hearing a sexual assault trial. However, as a result of the pressure originally from Bill C-337, judges are now required to attend "new judges" school, two one-week-long trainings that provide an overview of a variety of areas of law.

Judicial training is essential because lawyers who apply to become judges are not necessarily assigned to courts within their area of expertise. As a result, it is common for a judge with little to no experience in criminal law to preside over a criminal trial despite having no expertise in the subject matter.

While no judge can possibly master every aspect of every area of law, there are certain trials that require a highly specialized judge. Sexual assault cases are one such type of trial, I submit. The stakes for the complainant and accused in such a trial demand that only highly skilled judges should hear these trials.

With overwhelmingly low rates of reporting, every effort must be made to ensure that if an individual comes forward that the presiding judge knows how to properly handle the technical and highly personal nature of the circumstances of sexual assault law. In addition, the risk of the judge to make an error should be kept to a minimum, to avoid the need for appeals or, even more damaging, a retrial. A complainant often finds testifying to be traumatic. Every effort should be made so they do not have to undergo this process more than necessary.

The justice system already provides for specialized courts in certain instances. Some provinces have designated family courts, small claims courts, youth courts and others. Unfortunately, lawyers without experience in these areas of law are sometimes appointed to preside over these courts. This creates a self-defeating structure.

Indeed, this act contemplates the commissioner's role to determine the comprehensive education, taking into account sexual assault law awareness training. The modality and operation of this training remains to be developed by the judiciary.

That training could include 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 complaints.

The proposed legislation would also obligate the Canadian judiciary to produce an annual report that details how many judges have completed sexual assault training, how many cases were heard by judges who have never completed the training, as well as a description of the content of each seminar, its duration and the dates on which it was offered. Transparency and accountability will build respect and confidence that the system is responding to this need.

Bill C-337 would also ensure a greater number of decisions from judges presiding over sexual assault trials, ensuring that the cases receive adequate consideration. It is important to underline that, in his report on Justice Camp, the council recognized that Canadians expect their judges to know the law and possess empathy.

Bill C-337 would position legal education as the central tool ensuring our judges have the knowledge of social issues and awareness of changes in social values and a compassionate yet objective understanding of the facts, including the realities of victims and witnesses.

Those are the very qualities that sustain public confidence in the judiciary.

Bill C-337 is a preventative tool. It can provide the means to avoid similar situations that have happened in the past. Bill C-337 can be an instrument to ascertain and build confidence in the important pillar of our democracy, the judiciary.

Our legal system should protect victims of crime and reassure them that justice exists, that justice can and will be delivered. However, the statistics demonstrate that this has not been the reality.

In 2014, A Survey of Survivors of Sexual Violence in Three Canadian Cities published by the Department of Justice said that two out of three surveyed participants stated they had little confidence in the court process.

Further, only half of the respondents said they reported their sexual abuse or assault to police or through another individual.

Let us remember that when justice is denied, it constitutes another assault on each victim.

According to Dalhousie University law professor Elaine Craig, who is recognized as an expert in sexual assault law:

. . . we are at a crisis point in terms of the public's confidence in the criminal justice system's ability to respond appropriately to allegations of sexual assault.

Professor Craig is among those who support Bill C-337.

A 2012 study from the University of Ottawa suggested that just 0.3 per cent of perpetrators of sexual assault in Canada are held accountable for their actions.

To use the words of a pioneer of women's rights at the Supreme Court of Canada, the Honourable Justice Claire L'Heureux-Dubé said:

Women victims and survivors 'should be able to rely on a [justice] system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions'.

Bill C-337 seeks to preserve and defend the integrity of the judicial system in the wake of a growing number of troubling cases. It can be a step forward, a clear message in favour of those who cannot speak. The overall objective of Bill C-337 is to improve the treatment of victims of crime in the criminal justice system by ensuring a fair and objective trial.

To use the words of Justice Zuker's decision in the Mandi Gray sexual assault case:

. . . judges should have a good knowledge of the law. This knowledge extends not only to substantive and procedural law, but to the real life impact of law. As one scholar put it, law is not just what it says; law is what it does.

That is at paragraph 499 in that case.

According to the Native Women's Association of Canada, another organization that supports Bill C-337:

. . . the reported rate of one in three women living in Canada experiencing sexual assault in their lifetimes is a low estimate. For Aboriginal women, the rate is at least three times higher.

While the issue for victims of sexual assault is a deeper and broader concern in our society than those issues addressed in Bill C-337, such as issues in the workplace, in society, in policing and so on, nevertheless, it is a key step to maintain the confidence of the public in our judiciary, where in fact all should have a fair chance at a fair trial.