Training will be mandatory but support for complainants is lacking, argues Michael Spratt
Last week the Liberal government introduced its first justice bill of the new parliamentary session and, true to form, it is all “woke” style over substance.
Bill C-5, legislation that Minister of Justice David Lametti said was “consistent” with former Conservative leader Rona Ambrose’s 2017 private member’s bill, would require all federal judicial applicants to promise to take sexual assault training.
Lametti said the bill would help “foster greater confidence of [sexual assault] survivors in our justice system.” But it is far from clear that this is the case.
At best, the new bill does little to change the status quo.
Even more concerning is the lingering suspicion that what Lametti really meant was that more judicial training is required to ensure that there are more convictions in sexual assault cases.
You see, under the new legislation all newly appointed provincial superior court judges would be required to “undertake to participate in continuing education on matters related to sexual assault law and social context.”
The mandatory continuing education would be developed by the Canadian Judicial Council after consultation with “sexual assault survivors and groups and organizations that support them.”
To be fair to Lametti, this bill does address some of the obvious constitutional problems that plagued Ambrose’s private member’s bill. The government cannot interfere with the administrative independence of the judiciary by dictating particular training. Lametti’s bill walks the razor’s edge of constitutionality by requiring new federal judicial appointments to promise to take training instead of ordering sitting judges to do so.
In other words, this is a “we can’t tell you what to do when you are a judge but we can tell you to make promises before you become a judge or else you won’t become a judge” situation.
So, the bill may be constitutional, but that does not mean it is necessary, wise or effective.
Standing beside Lametti at the legislative launch party, Ambrose asserted the commonsensical proposition that “all judges should receive mandatory sexual assault training.”
Yes, judges should receive ongoing legal education in all areas of law. But then Ambrose went one step further and incorrectly asserted that “to this day [mandatory sexual assault training] is not happening.”
Except it seems that it is.
And Ambrose should know that.
In 2017 Norman Sabourin, the executive director and senior general counsel of the Canadian Judicial Counsel, told the committee studying Ambrose’s bill that in addition to the long-standing policy requiring all judges to devote at least 10 days to professional development each year there was a requirement for all new judges to participate in “social context” education.
At the same committee hearing, the executive director of the National Judicial Institute, Justice Adèle Kent, testified that almost all federally appointed judges attend NJI training for sexual assault trials, including the dangers of rape myths and stereotypes.
So, judges do participate in ongoing sexual assault training, and it is mandatory.
Lametti’s bill is simply not necessary. It is also dangerous.
Although the bill is vague about what education in “social context” actually means, there is no lack of clarity about who must be consulted about that training.
Lametti’s bill requires that the mandatory programs be developed in consultation with “sexual assault survivors, as well as with groups and organizations that support them.” The problem here should be obvious: an interested party should not be involved with training the judiciary. In our adversarial system this type of behind-closed-doors partisan education sets fertile conditions for the perception of bias and wrongful convictions.
And where does the legislated education end?
Just this month the Correctional Investigator of Canada Ivan Zinger called the increasing and disproportionate incarceration of Indigenous People "disturbing.”
Why not mandatory judicial education on issues impacting Indigenous People?
Why not mandatory judicial education on systemic racism, or the impact of poverty on crime, or the now debunked myth of general deterrence?
Trust me on this one, more cases are returned from the Court of Appeal because trial judges misapplied the burden of proof, undermined the right to silence or too narrowly applied Charter protections than cases overturned for the pernicious use of sexual assault myths and stereotypes.
So why is there only mandatory training on sexual assault law?
Ambrose’s bill was adopted unanimously in the House of Commons without any debate (though it had not been passed by the Senate at the dissolution of the 42nd Parliament). And it looks like history may have repeated itself last week; on the day Lametti introduced the judicial education bill, NDP leader Jagmeet Singh called on the House to pass the legislation without any study or debate.
Interference with the judiciary should always be subject to the most rigorous debate and study.
We don’t need to pin our hopes on flawed and unnecessary legislation — especially such that will not apply to provincial court judges who hear 95 per cent of all criminal cases — to do right by victims of crime.
Step down from your ivory tower with me for a view from the trenches: where complainants in sexual assault cases are provided inadequate social supports; where complainants are almost always provided inadequate information about the court process; where the legal education of lawyers (both Crown and defense) is too often seen as an expensive obligation and not a learning opportunity; and where the wishes of complainants are often ignored.
Maybe we can start by tackling these problems.
Holding out Lametti’s bill as a silver bullet misses the opportunity for real progress, and to bring about real, meaningful reforms.
Because meaningful action is always better than virtuous words and ineffective gestures.