‘Judicial Accountability’ Bill highlights well intentioned hysteria

  • Subtitle: Sidebars
Written by  Posted Date: May 23, 2017
‘Judicial Accountability’ Bill highlights well intentioned hysteriaThe House of Commons has approved Bill C-337, The Judicial Accountability Through Sexual Assault Law Training Act, with little or no debate. The Senate is likely to do the same. This proposed legislation began as a private member’s bill, introduced by Interim Conservative Leader and Leader of the Official Opposition Rona Ambrose which sought to restrict eligibility for judicial appointments to individuals who had completed comprehensive sexual assault education. A blatant and dangerous interference with the independence of the judiciary, it now seems to have been amended to require this training for all judges once appointed, which is less offensive.

Nevertheless, there are real concerns about the genesis and need for this legislation that should not be overlooked. One of the items integral to the original bill and this new version is found in the opening preamble:

    “Whereas survivors of sexual violence in Canada must have faith in the criminal justice system . . .”

This is echoed in a statement made by a witness at a Senate hearing, as reported in a recent column on this topic by the distinguished journalist, Sean Fine, in The Globe and Mail,

    “. . . we are currently seeing a profound lack of confidence with respect to the justice system’s handling of sexual-assault cases.”

With respect, this is in itself a profound exaggeration of the facts. On a daily basis throughout this country there are countless cases involving sexual assault allegations that are properly concluded by sensitive, bright, informed and caring judges, many of course who are women.

Continuing judicial education is, and has been, vibrant and comprehensive in Canada, covering global changes in the laws to changes in attitudes and culture.  Selection committees currently screen the sense and sensibilities of eligible candidates. Some provinces have personal interviews. The new federal process has a comprehensive and detailed questionnaire.  

Judges do not come down in the last rain from another planet. Before their appointments, they have often been accomplished leaders of the bar in many fields and they bring different, but equally vast, life experiences to the bench.  Our system is working.  

Chief Justice of the Province of Ontario Lise Maisonneuve creatively got in front of the problem by recently announcing mandatory educational programs for new appointments.

Nevertheless, one may wonder how we got here, to Bill C-337. It seems our system has been hijacked by special interest groups.

“Sexual assault survivors as well as groups and organizations that support them” are now going to be consulted on “evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings.”

This tsunami encroaching on judicial independence is as a result of a few cases where judges seemed to be insensitive and misinformed about the law and the dynamics in sexual assault matters.

Fed by the hysteria surrounding the Jian Ghomeshi acquittal where we were all forced to join opposing camps, and then a segue, if you will, to Justice Robin Camp and the media reporting on a select few cases, the embers exploded and political posturing began.  

Legislation should be introduced to fill a void, to respond to necessary changes in the law. This bill does neither. Moreover, it creates real problems.

A new section calls for a record of decisions by the judge, and if not recorded in writing, for dispositions in all sexual assault cases, except acquittals of course.  This is a recipe for Jordan unplugged.

Moreover, the bill makes mandatory oversight and annual reporting to the minister of the programs and attendances by the judiciary. This does not strike me as a healthy affirmation of the separation of powers but rather a hysterical reaction to uninformed individuals who have little faith in our system of justice and agendas which, for some reason, we in this profession are afraid to challenge.

The preamble to Bill C-337 also states the following:

    “Whereas Parliament recognizes the importance of a free and independent judiciary . . . ”

The irony is clear and I sense that Canada is moving in an opposite direction.

Appellate courts and judicial councils that currently oversee judges’ decisions and conduct will be criticized as not accountable by those who mistrust our judicial system, don’t understand how it works and have contemporary agendas that are politically attractive.

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Comments   

+2 # BarristerJeffry a. House 2017-05-23 19:45
The judiciary, like the police should be accountable only to the law.
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0 # When Were Judges Ever Really IndependentChris Budgell 2017-05-23 16:50
This debacle has given me an opportunity to advance my arguments about the rule of law on a number of fronts.

I'll suggest here another one. There is a purported "common law" tradition that judges are said to inherit. I think Dicey and Lord Hewart were right about the dangers inherent in the rise of an administrative state. Canada's judiciary have a record of enthusiastically encouraging that rise. What that required was abandoning the common law tradition.
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Bill Trudell

Veteran criminal defence lawyer Bill Trudell brings the conversation around to issues of importance to the criminal bar and the legal profession as a whole.

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