2nd Session, 43rd Parliament
Volume 152, Issue 37
Tuesday, May 4, 2021
The Honourable George J. Furey, Speaker
Bill to Amend—Third Reading—Debate Adjourned
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to Bill C-3, An Act to amend the Judges Act and the Criminal Code.
I want to thank the sponsor, Senator Dalphond; the critic, Senator Boisvenu; all the members of the committee; the clerk, Mark Palmer; and the staff of the Standing Senate Committee on Legal and Constitutional Affairs for their work on this bill.
I want to also thank the Honourable Rona Ambrose for standing up for women who are sexually assaulted. Ms. Ambrose, by introducing Bill C-337, the predecessor to Bill C-3, you have shown your dedication and commitment to addressing harmful myths and stereotypes about sexual assault law, and I know women across Canada thank you for that.
Just the fact that you introduced this bill has already had a great impact on the judiciary. As we all know, most cases of sexual assault are heard in provincial courts.
During witness testimony for the committee’s study of Bill C-3, we were informed that provincial judges in British Columbia heard more than 98% of sexual assault cases in that province.
According to Ashani Montgomery from the Vancouver Rape Relief and Women’s Shelter:
Most sexual assaults are tried in provincial court. In 2017 in British Columbia, out of 4,279 sexual assault trials, 81 were tried in Supreme Court . . .
That amounts to approximately 2%.
Honourable senators, that percentage likely reflects similar rates in the rest of Canada.
The Honourable Adèle Kent, Chief Judicial Officer, National Judicial Institute, echoed that “The reality is that provincial and territorial judges conduct most of the sexual assault cases in Canada.”
Paul Calarco of the Criminal Justice Section of the Canadian Bar Association also stated:
. . . provincially or territorially appointed judges . . . preside in the courts across Canada where the majority of sexual assault cases are actually heard.
What is more, I believe we are all aware that Judge Camp was a provincial court judge when he made the most despicable remarks, which really are the genesis of this bill.
Justice Camp’s discipline hearing was while he was a Federal Court judge and the justices dealt with his case. He is no longer a judge.
To reiterate, this bill applies to Federal Court judges only, and approximately 2% of sexual assault cases are heard in federal courts.
Honourable senators, I do not look at statistics lightly. We all know one case is too many. That said, I do believe that this is a cause for pause and reflection.
From a very young age I have been an activist, and I have fought for the equality of all women. Some of my capacities have been as the chair of the British Columbia Task Force on Family Violence and a member of the national panel on violence against women.
I continue to work on these issues of sexual assault.
As an activist and as a lawyer, after two years in practice, I started working on training with judges on violence against women and how racism affects women of colour.
Later, I started working with Justice Campbell and the Western Judicial Education Centre that used to train provincial court judges.
After a while, we were also working with the National Judicial Institute. We travelled across the country to provide courses on violence against women and racism.
Now, in my role as a senator, I take very seriously my responsibility of being a Canadian legislator.
All this experience has formed my unrelenting belief of how important it is that there be appropriate and well-informed training of judges who enforce our rule of law. This has to exist within the independent judiciary, external to the rule of Parliament. Honourable senators, without an independent judiciary there can be no rule of law. Since 1982, the rule of law has been enshrined in the preamble to the Charter. Maintaining the rule of law depends on the existence of an independent judiciary.
That is not to say that there have not been challenges. There are still politicians who propose challenges to the independence of the judiciary. For instance, in February 2001, a political movement in B.C. reminded us that the foundational principles assert:
. . . the legislature has supremacy over the judiciary, the executive and the administrative branches of government and all must be held fully responsible for the proper execution of their respective functions . . .
Further, this political movement wanted to include clauses that require legislation for the recalling of politicians and judges.
In 1956, Professor Lederman, a Canadian constitutional scholar and the first dean of the Queen’s University Faculty of Law, spoke about the independence of the judiciary as one of the four basic principles of English common law:
. . . (1) “That no man (one) is above the law . . . (2) That those who govern . . . do so in a representative capacity and are subject to change . . . (3) That there shall be freedom of speech, thought and assembly. (4) That there shall be an independent judiciary. . . .
To paraphrase Lederman, it is unacceptable that Parliament should today regard itself as free to abolish the principle that has been accepted as a cornerstone since the Act of Settlement.
Lederman is clear:
It has been recognized as axiomatic that if the judiciary were placed under the authority of either of the legislative or the executive branches of the Government then the administration of the law might no longer have that impartiality which is essential if justice is to prevail.
In Beauregard, former Chief Justice of Canada, Justice Dickson, stated:
The role of our courts as resolver of disputes, interpreter of the law and defender of the Constitution, requires that they be completely separate in authority and function from all other participants in the justice system . . . .
In Canada, the rationale for this separation is even stronger than in Britain since we have a federal system that requires an independent judiciary to settle issues between provinces and the provinces and the federal government.
It follows that at the heart of judicial independence is the practice that judges are clearly set apart and are free to act impartially and free from influence that could interfere with proper exercise of judicial function. This privileged position may at first glance appear to allow judges to act as they wish, even to the detriment of the common good. There are, however, a number of restraints on judicial conduct. A judge is barred by the discipline of the law and is obliged to decide in accordance with the law. Of course, as we have all seen, judges make errors, which is the reason for the courts of appeal. With regard to judicial misconduct, there is a process that can result in removal from office, as was in the case of Justice Camp.
The privileges of judicial independence sometimes come under scrutiny by us as politicians. These are sometimes derived out of the good intention to, in some way, educate the judiciary. However, honourable senators, I believe that the best way to ensure that the judiciary is capable and worthy of being justices in Canada is to ensure that judges are chosen from a diverse Canada and have a deep understanding of the communities they live in. This will better ensure proper judgments than any remedial legislation we might have.
Honourable senators, I would like to point out that the government’s Bill C-3 is very different from Bill C-337, Ms. Ambrose’s bill. Unfortunately, Bill C-3 does not address myths and stereotypes, as was the vision originally brought forth by Ms. Ambrose. Whereas Bill C-337 made written decisions mandatory, Bill C-3 has rendered them optional. Additionally, while Bill C-337 made it clear that the judicial council shall submit a report on the seminars to the minister, Bill C-3 has changed this wording to “should.”
Further, Bill C-337 ensured that the minister would receive reports related to how many sexual assault cases were presided over by a judge who never participated in the seminars. Bill C-3 removes this clause completely.
Finally, one the foundational principles of Bill C-337 is to require a judicial candidate to complete sexual assault education. Bill C-3 reframes this foundation by simply requiring a new judge to undertake — but does not make it mandatory — to complete this training, thus effectively removing the requirement entirely. That is not to mention that this requirement only applies to new judges and does not apply to current judges. In effect, Bill C-3 has taken all the muscle out of Bill C-337. They are not the same bills.
Honourable senators, most of you know that I fled my home of Uganda under the tyranny of Idi Amin. In Uganda, prior to the time my family and many others were expelled, we did have an independent judiciary. My mother was a probation officer, and throughout my adult life I heard her speak about how she was in court the day Amin’s army officials walked into the courtroom of the then-Chief Justice of Uganda, Benedicto Kiwanuka, to issue arrest warrants against some of the most prominent Ugandans to show that Amin’s regime had credibility in arresting these people. On a very personal note, I am told my father was on that list and very soon after that, my father fled Uganda in very difficult circumstances.
In the face of this threat to his personal safety, Chief Justice Kiwanuka exercised his right of independence and refused. He was threatened that if he did not issue the arrest warrants, he would be dealt with harshly. He still refused. He was dragged out of his courtroom and dumped into the back of a car trunk, never to be seen again. We know he suffered a terrible death, but he never relented.
Honourable senators, that is why the independence of the judiciary is in my DNA. Fortunately, our Canadian justices will never suffer that fate, and they know they will always be able to exercise their right of freedom. However, now Parliament is intruding on that right. Honourable senators, I finally ask you all: Will this change anything?
When Senator Campbell, deputy chair of our committee, asked Justice Kent what this bill would add to the training that is already going on across Canada, Justice Kent replied:
In one respect, I would suggest that the training will continue to evolve the way it has, and in one way, I might say, it would make no difference.
Senator Campbell then asked Ms. Savard, director of the Criminal Lawyers’ Association, what this bill will add to what is already taking place; her answer was very telling: “I think the short answer is nothing.”
Senator Campbell followed up by asking, “Is this bill constitutional?” Ms. Savard stated: “I would say no, and I’ll let Ms. Enenajor add to that if she wishes.” Her colleague Ms. Enenajor echoed the sentiment when she replied that she believes the bill is not constitutional.
Honourable senators, still today, I work directly on these issues of sexual assault. In fact, every week I get up early on Thursday morning to speak with women about how to address issues of physical and sexual assault against women in Canada and around the world. This is a federal bill, and most sexual cases are heard in provincial courts. Bill C-3 falls short of the intent of Bill C-337. It will change nothing. It is also very likely unconstitutional and it will infringe on the coveted balance of legislative and judicial powers upheld by judicial independence.
Honourable senators, we know that as the chamber of sober second thought we have a different role than the other place. The question we now have to ask is this: Are we prepared to erode our Canadian judiciary’s enshrined rights of independence? Thank you very much, senators.
(On motion of Senator Martin, debate adjourned.)