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The Canadian Criminal Justice Association

BRIEF

on

Bill C-3, An Act to amend the Judges Act and the Criminal Code

43rd Parliament 2nd Session

December 8th, 2020

 

Background on the Canadian Criminal Justice Association (CCJA)

The CCJA is one of the longest serving non-governmental organizations of professionals and lay-persons interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before various Parliamentary committees on numerous occasions. Our Association consists of approximately 400 members from across the country and publishes the Canadian Journal of Criminology and Criminal Justice, and the Justice Report. We also organize and host the Canadian Congress on Criminal Justice every second year.

We appreciate the opportunity to provide comments on Bill C-3, An Act to amend the Judges Act and the Criminal Code, recently passed by the House of Commons and introduced in the Senate.

Proposed sections 3(b) and 62.1 of the Judges Act: Continuing education for the judiciary

Bill C-3’s main purpose is to restrict eligibility for judicial appointment to only those who participate in continuing education on matters dictated by Parliament. In other words, a person that wishes to be appointed as a judge must undertake to participate in continuing education on a legislated list of specific matters. Under the current version of the Bill presently under consideration by the Senate, these include sexual assault law and “social context”, which includes systemic racism and systemic discrimination.

The CCJA strongly endorses continuing education for the judiciary, including on these aforementioned matters. However, we have strong reservations about how Bill C-3 implements it.

Essentially, by Parliament requiring judges to be trained on specific matters – even crucial matters for which continuing education is necessary – the amendments proposed by Bill C-3 jeopardize the constitutionally protected principle of judicial independence. Making sure judges are appropriately trained is laudable and worthy of support. As testimony given on this Bill demonstrates, organizations like the Canadian Judicial Council and the National Judicial Institute already ensure such training. Simply said, the doctrine of the separation of powers advises that the legislative branch should not be telling the judicial branch what to learn and how to think.

Proposed section 62.1 contributes to our concern. It provides that the Judicial Council, which oversees judicial education, “should” submit yearly reports to Parliament summarizing the content of the mandated training, as well as the number of judges who participated. The previous version of the Bill used the term “shall”. In either case, requiring annual reports about what is taught and learned during such seminars endorses excessive legislative branch scrutiny over the judicial branch, arguably intended to coerce the judiciary into adopting certain types of thinking.

Another, more practical issue that Bill C-3 raises is determining what matters or topics should be included in such mandatory training dictated by Parliament. Quite interestingly, the initial version of Bill C-3 was limited to sexual assault. As major controversies in society unfolded, parliamentarians have been adding topics to the list, which now includes not only sexual assault law, but also “social context”, which is expressly stated to include systemic racism and system discrimination.

Additionally, it is surprising to note that while these newly added matters are included in proposed section 60(2)(b) of the Judges Act (establishing seminars), they are not included in proposed section 60(3)(a) which provides that the Council should consult with appropriate groups when developing appropriate training in relation to sexual assault law. We ask why not?

In any case, regardless of what the list includes, it is the simple existence of a list that is problematic. It is our view that judicial training should be left to judges. Parliament shouldn’t be dictating that members of the judiciary must think a certain way. Furthermore, judges are already required to know the law and their decisions are appealable if a decision demonstrates ignorance of or errors in the law.

As its preamble states, Bill C-3 aims to foster public confidence in the judicial system, especially regarding the administration of sexual offences. Yet, ironically, when the legislative branch requires the judiciary to undertake courses on the “hot button” issues of the day, it is our contention that this risks undermining public confidence in the independence of the judiciary.

In essence, we wholeheartedly agree with the importance of members of the judiciary being appropriately trained in sexual assault law, systemic racism, and systemic discrimination, as well as any other important matter that might present itself. However, it is unacceptable for Parliament, rather than judges themselves, to be ordering such training.

Reasons in sexual assault cases (proposed section 278.98 Crim. C.)

This proposed amendment would require that judges’ reasons in sexual assault cases be entered in the record or provided in writing. The CCJA supports this amendment. The purpose is laudable: making the judicial system more accessible so that victims and the public may be made aware of the processes and deliberations that take place. We firmly believe in the idea that a more open and understandable justice system fosters stronger public confidence in its results.

However, we should note that reasons are already mandatory in any criminal case. The complete lack of reasons is a viable ground for appeal. Further, while some decisions may be written and published, others are rendered orally and the recorded reasons are not, to our knowledge, regularly available to the public. Consequently, to satisfy proposed section 278.98(3), court administration would have to render available, the recordings in all sexual assault cases.

Finally, if decisions in sexual assault cases are made more widely available, we believe all criminal court decisions should be made more widely available (subject only to restrictions imposed by Criminal Code provisions such as s. 486). It seems counterproductive to ensure a more open and transparent justice system only for specific types of offences.

Recommendations

The CCJA strongly supports continuing legal education for judges, determined by and organized by judges, including with respect to legal concepts applicable to sexual offences, systemic racism and systemic discrimination.

However, we do not support Bill C-3’s mandatory training and annual report provisions because, in our view, they unjustifiably erode judicial independence.

We support Bill C-3’s proposal to have decisions and reasons more widely available for cases involving sexual offences, but we believe this logic should be applied to all types of cases given the “open justice” principle and its value in a democratic society.

Finally, we would like to note that the scope of this Bill, if passed by Parliament, will be very limited since it would only apply to federally appointed judges. Most cases involving sexual offences are decided in provincial and territorial courts heard by provincially and territorially appointed trial judges.

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