Appearance before the Senate Standing Committee on Legal and Constitutional Affairs – Bill C-3: An Act to amend the Judges Act and the Criminal Code
Opening Remarks
Minister of Justice: Opening Remarks – 10 minutes
March 2021
I am very pleased to be here today to speak to you, and answer any questions you may have regarding Bill C-3, An Act to amend the Judges Act and the Criminal Code.
The Bill before you represents Parliament’s third attempt to have this important piece of legislation become part of the laws of Canada. Some honourable members will remember the important work undertaken by this Committee in relation to Bill C-337. That bill started as a private Member’s bill sponsored by the Honourable Rona Ambrose who rallied universal support for the principles behind her bill: survivors of sexual assault must be treated fairly, with dignity and respect, and sexual assault proceedings cannot be influenced by misguided or out-dated myths or stereotypes.
Bill C-337 received the unanimous support of the Other Place following a Government-sponsored amendment to include social context education in the bill. This Committee, taking into account a number of stakeholders’ concerns, in particular in relation to judicial independence, proposed practical amendments to address these concerns and strengthen the bill. Stakeholders and Parliamentarians, including Ms. Ambrose, supported these amendments. Unfortunately, however, Bill C-337 did not pass before the 2019 election was called.
In February 2020, the Government introduced Bill C-5, which largely replicated Bill C-337, including the amendments proposed by this Committee. However, following the unprecedented intervention of the pandemic and its impact on Canadians and the operations of all of our public institutions, that bill also died on the Order Paper.
In September, I was pleased to introduce Bill C-3, the third and I hope final attempt, to have the important objectives of this legislation become law. Indeed, this bill was among the first to be introduced in this new session of Parliament, a fact that clearly demonstrates our Government’s commitment to these objectives.
The ultimate purpose of Bill C-3 is to enhance public confidence—and in particular, the confidence of survivors of sexual assault—that the criminal justice system will treat them fairly. It is to reassure survivors that when they come forward, they will be treated with dignity and respect by judges who have the knowledge, skills and sensitivity to correctly apply what is a very complex and nuanced area of the law.
This objective has received the universal support of all Parliamentarians, in both Chambers, in all of its legislative incarnations. I hope that this represents the final stage of Parliament’s attempt to take what is a small, but significant step in demonstrating our commitment to transforming our justice system into one in which survivors of sexual assault are treated with the dignity they deserve.
The Bill before you differs from Bill C-337 and Bill C-5 in an important respect: it specifies that social context includes systemic racism and systemic discrimination.
The impact of the pandemic has, in some way been felt by every person in this country, but none more so than the most vulnerable and most disadvantaged in our society. The effects of the pandemic, and the events of the last several months, have highlighted the urgency of addressing the systemic inequalities that exist within our society, including those within our justice system.
With this moral imperative top of mind, the Standing Committee on Justice and Human Rights sought to demonstrate their conviction that Parliament must act, within its legislative authority, to give voice to those whose calls have until now gone unheeded. Building upon the foundation this Government laid by amending Bill C-337 to include social context education, the Committee amended Bill C-3 to specify that social context includes systemic racism and systemic discrimination.
A meaningful discussion of the relevance of social context to our justice system must include systemic racism and systemic discrimination. In this regard, the Committee proposed explicit recognition of this reality in Bill C-3. Our Government wholeheartedly endorsed this recognition.
At the same time, the Committee was conscious of the need to respect the fundamental constitutional principle of judicial independence. I take my responsibility as Minister of Justice to uphold judicial independence very seriously. Its importance cannot be overstated. Parliament’s efforts to bolster public confidence in our justice system cannot undermine this constitutionally-protected principle.
Judicial independence requires judicial control over judicial education. This control is necessary to ensure that judges are, and are perceived to be, impartial in their decision-making and free from arbitrary interference, in particular by the state.
To ensure that Parliament did not tread into unconstitutional waters, the Standing Committee on Justice and Human Rights proposed clarifications in relation to the role of the Canadian Judicial Council. These make it very clear that, ultimately, it is for the Council to determine how to implement Parliament’s will.
The Canadian Judicial Council is committed to excellent continuing education for judges, and this commitment is manifest in its Professional Development Policies and Guidelines. These Guidelines explicitly recognize that the public rightfully expects judges to be competent and knowledgeable in the law. Bill C-3 seeks to support and build on this notion and thereby move towards a more humane and inclusive justice system.
Through Bill C-3, Parliament is responding to critical concerns shared by Canadians. Yet, as judicial independence requires, the Bill reserves the final say for the judiciary. The balance has not been disturbed by virtue of Parliament having signalled its priorities to the judiciary on behalf of Canadians.
I will now speak very briefly to each of the key elements of Bill C-3.
Firstly, to ensure that new judges will participate in education on matters relating to sexual assault law and social context, this Bill would amend the Judges Act so that candidates are only eligible for appointment to a provincial superior court if they agree to participate this fundamentally important education following their appointment.
Secondly, to help ensure that judicial education on sexual assault law reflects and respects the experiences and perspectives of survivors of sexual assault, the Bill would amend the Judges Act to clarify that the Canadian Judicial Council “should” develop such training after consultation with survivors, or the groups that support them.
Thirdly, the Bill seeks to have the Canadian Judicial Council report annually to the Minister on the delivery of judicial education on matters related to sexual assault law and social context. These annual reports, which would be tabled in Parliament, aim to enhance the public’s understanding and awareness of judicial education, and should encourage judges to participate in continuing education on these crucial topics.
Finally, Bill C-3 would amend the Criminal Code to require judges to provide reasons—in writing or in the record of proceedings—for their decisions in sexual assault matters. This is intended to help prevent the misapplication of sexual assault law. It is also intended to increase the transparency of sexual assault decisions as written reasons and reasons entered into the record of a proceeding can be reviewed.
Taken together, the amendments that Bill C-3 proposes to the Judges Act and the Criminal Code seek to enhance the confidence of survivors, and broader public confidence, in the ability of our criminal justice system to hear sexual assault cases in a manner that is fair and respectful, treats survivors with dignity, and accords with the law that has been carefully developed to ensure this. This Bill sends a message to all Canadians, particularly survivors of sexual assault, that Parliament is committed and prepared to act to ensure a justice system that every Canadian can trust.
I will conclude my remarks today where I began. When survivors of sexual assault interact with our criminal justice system, they must be treated fairly, with dignity and respect. They must not encounter harmful, out-dated myths or stereotypes.
I acknowledge that the challenges faced by survivors of sexual assault go well beyond the scope of this bill. In order to effect meaningful and sustainable changes to the manner in which survivors of sexual assault are treated by our criminal justice system, every actor in the justice system and every level of government must take responsibility. I urge all members to take this important step and vote to move Bill C-3 onto the next phase.
Thank you.
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