A bill that would require federal judges to receive training in sexual assault law was tabled in the House of Commons Tuesday, months after similar proposed legislation died in the Senate.
Federal judges who preside over and sometimes decide the verdict for serious sexual assault trials are currently not required to take specific training about this aspect of the law, including rape myths and stereotypes and how trauma could impact a victim’s memory.
“This is a necessary bill that will make our system more just and will increase confidence, particularly of women, in the criminal justice system,” said Liberal Justice Minister David Lametti at a news conference in Ottawa.
Rona Ambrose, former interim Conservative leader, introduced similar legislation in 2017 as a private members bill with the full support of the House of Commons. However, Supreme Court Chief Justice Richard Wagner said such training was not necessary, and the Senate didn’t start considering it until June 2019, just before summer break. The bill did not clear the upper chamber before it rose for the end of the parliamentary session.
This time around, the Liberals have reintroduced it as a public bill again with the support of all parties, which will make the legislation a priority for senators. “It’s making a promise to victims,” Ambrose told reporters. “If they have the courage to report and if they get to trial, the person presiding over their case, the judge, is actually competent in sexual assault law.”
She pointed to the Supreme Court ruling in 2019 that ordered Bradley Barton to be tried again for the death of Cindy Gladue in Alberta. The judge had made a basic error by allowing the defence to use Barton and Gladue’s past sexual history as evidence that she had consented to the sexual activities that led to a 11-centimetre tear to her vagina and her bleeding to death.
The jury found Barton not guilty of first-degree murder.
“We need judges to preside over cases with complete knowledge, competency and up-to-date training,” Ambrose said.
“There are some issues that are really above politics. From the very beginning this has been about all MPs in the House working together on behalf of all victims.”
Watch: Ambrose says sex assault training for judges is “common sense.” Story continues below.
Sexual assault is an underreported crime in Canada. Only five per cent of sexual assaults are reported to police, and of those cases, 12 per cent result in a criminal conviction within six years, compared to 23 per cent of physical assaults, according to Statistics Canada.
Last year, HuffPost Canada identified at least 10 sexual assault cases where judges relied on stereotypes and rape myths when informing their decisions, or made significant mistakes on issues of consent.
Since then, appeal courts have ordered several new trials because of major errors made by federally-appointed trial judges.
In Ontario, for example, a superior court judge acquitted a man of sexually assaulting his girlfriend’s 11-year-old daughter for years, despite the man admitting to touching her during a polygraph test. One of judge’s reasons was that the girl “has an interest in sex” and had testified she was taking sex education in school.
The court of appeal overturned the verdict in December, and ordered a new trial. The girl’s previous sexual activity, or interest in sex, is not evidence that she consented, ruled Justice Mary Lou Benotto. Also, and significantly, she is too young to give consent.
In a separate case, an Ontario judge acquitted the accused of sexually assaulting a woman he lived with at an assisted care residence for adults with disabilities. The judge said he didn’t believe the woman because she couldn’t say how long the alleged assault lasted for, and was wearing a “loose fitting pajama top with no bra and underwear.” She also didn’t immediately leave, or report the incident.
In November, the court of appeal blasted the judge for relying on myths and stereotypes that “have no place in a rational and just system of law” such as if she is not modestly dressed, she consented to sexual activity.
“There is no rule as to how victims of sexual assault are apt to behave,” the ruling said.
Judges have also erred in siding with the alleged victim. In Alberta, the court of appeal ordered a new trial for a man who’d been found guilty of sexual assault. The trial judge had dismissed significant evidence that showed how the alleged victim’s story was inconsistent, the January ruling said.