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Judging Judges: Thoughts

Updated: Jul 28, 2019

Thoughts on the #Cancelled Judicial Accountability through Sexual Assault Law Training Act

Image reads: Meet Naomi, Judging Judges
Judging Judges

What is it?

The Judicial Accountability through Sexual Assault Law Training Act (the “Bill”) was/is a bill that died on the order paper (or #cancelled in millennial terms). Conservative MP, Rona Ambrose, introduced the bill in 2017. The bill passed in the House but did not make its way through the Senate prior to the House rising for summer and the next election (Source).

The bill sought to do two things:

  1. Require all federally appointed judges to complete “recent and comprehensive” education in sexual assault law and social context education; and,

  2. Require all judges to provide reasons in proceedings of an offence under (generally speaking) certain sexual offences, offences relating to children and sexual assault offences.

Why was it important?

The bill relates to certain comments made by a judge in Alberta involving a sexual assault victim wherein the judge asked whether the victim could keep her knees together to avoid the assault (Source). The victim in that case is Indigenous. Assuming that such education could provide justice for Indigenous victims/survivors, the bill aimed to do above through certain amendments of the Judges Act and the Criminal Code of Canada. This post focuses on the amendments to the Judges Act.

What did it intend to do?

First things first.

The Judges Act creates the Canadian Judicial Council (CJC). The CJC’s objects and power, as a result of the Judges Act, include:

  • The objective to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts;

  • The power to establish conferences of chief justices and associate chief justices;

  • The power to establish seminars for continuing education of judges;

  • The power to make inquiries and investigation of complaints or investigations described in certain sections of the Judges Act; and

  • The power to make inquiries regarding a person appointed to hold office during good behaviour, generally speaking, should be removed for reasons such as age, or guilty of misconduct, among other things.

The Bill required all persons eligible to be appointed a federally appointed judge in any province to complete the following:

  1. education in sexual assault law that has been developed in consultation with sexual assault survivors, as well as with groups and organizations that support them, and that includes instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants; and

  2. social context education. (Source.)

The Bill did not define social context education. The Bill also seemed to adopt confusing and inconsistent references to sexual assault victims, wherein they were either the victim, survivor or complainant. References to the word “complainant” signals certain language or the perspective that a sexual assault victim are complaining or that they are the ones in the wrong (it is not victim- or survivor-centred language).

And so, what?

I have been wanting to write on this #cancelled Bill for some time as this Bill did not leave me feeling with a sense of relief or certainty regarding the type of justice sexual assault survivors, namely Indigenous victims/survivors, may expect in or from the criminal justice system. There are many players in the criminal justice system, not only including judges. While I agree that the judge’s remarks were unnecessary and inflamed society’s view of the judiciary, I do not agree that Parliament should be in the business of legislating certain kinds of education in our judiciary. This does not mean that I do not agree that judges should not receive such education/training. This means, rather, that I believe that such training/education should be left to the appropriate bodies and within the context of their jurisdiction, especially when the education that this Bill required is quite literally so specific.

Here is what we know about federally-appointed judges:

  • That the powers of CJC is through the Judges Act (and if this Act did not exist, the CJC would not exist);

  • That the powers of the CJC include establishing education/training for federally-appointed judges; and

  • That the powers do not include any specific education/training for federally-appointed judges including education/training in social context education, education/training in prohibitions on certain evidence, principles of consent, conduct of sexual assault proceedings, and education on myths and stereotypes of sexual assault survivors (all things the Bill aimed to do);

  • That in order to be even appointed a judge, one must be a barrister/solicitor of at least 10 years (or for an aggregate of at least 10 years, been a barrister/advocate at a bar, among other things and generally speaking).

No really, what does it all mean?

This means that somewhere along in a lawyers’ education and/or training, and if they are appointed a judge, they are not receiving competent education/training involving certain kinds of evidence. This likely means that provincial bars are not ensuring that *some* lawyers are delivering competent legal services. This also likely means that law schools are inadequately preparing future lawyers for the practice of law.

Okay, but what next?

My personal perspective (read: not legal advice) of this Bill is that it is unnecessary and over-burdensome especially in its specificity of the kind of education/training to be delivered. I would also include that it likely oversteps judges' ability to manage and oversee their own administration, namely, the judicial independence (Source).

I am not saying that the Bill imports a certain bias overall and that if were to ever become law suggests bias in certain education/training; rather, I am saying that the Bill would imply that judges are incapable of being able to competently deliver education/training in that education/training. I say this as the Bill required such specific consultation with certain groups, limiting who could or could not participate in the education/training development. It is clear that federally-appointed judges do make certain efforts to remain educated and informed. It is not clear, however, how this Bill would have improved any of those efforts. Generally, it was a nice idea but there are better avenues and methods.

In light of these critiques, I would have much rather adopt similar language as in Ontario’s Courts of Justice Act involving continuing education. Such language reads:

Continuing education of judges has the following goals:

  1. Maintaining and developing professional competence.

  2. Maintaining and developing social awareness.

  3. Encouraging personal growth. (Source.)

This language leaves the door open for other kinds of education/training, as opposed to the flavour of the day/year (hello #hashtag activism).

Perhaps, and in the end, we can use this Bill as a reminder that all players in the legal system, from law schools to law societies, play an active and ongoing role in the kinds of narratives produced by our judiciary.

Time for law schools and law societies to take responsibility y'all!


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