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Mandatory Sex Assault Training For Judges Sets Dangerous Precedent: Council

The Canadian Judicial Council told MPs about its concerns with Bill C-5.

Canada’s chief justices do not support mandatory sexual assault law training, claiming it would open the doors for future governments to shove “controverisal education initiatives down the throats of judges.”

That’s the message Justice Michael MacDonald of the Canadian Judicial Council told MPs Tuesday at a committee meeting to review Bill C-5. The legislation was introduced in the House of Commons with all-party support last month and would require federally-appointed judges to participate in sexual assault education.

“Our main message is, trust us. We are on top of this,” said MacDonald. He asked MPs to soften the bill’s language by replacing words like “shall” to “should” but keep “the vision and laudable goal of the legislation” intact.

Nova Scotia's Chief Justice Michael MacDonald stands in his office during his last days on the job in Halifax on Jan. 30, 2019.
Nova Scotia's Chief Justice Michael MacDonald stands in his office during his last days on the job in Halifax on Jan. 30, 2019.

The council’s main concern is that, hypothetically, 10 years from now, a government could use this bill as a precedent to direct judges to learn about controversial topics, MacDonald said.

“What if a government were to direct judges to learn about, let’s say the ‘myth’ of residential schools,” said MacDonald, gesturing with air quotes. “What if Parliament were to direct judges to say we want you to learn about the myth of the Holocaust, we want you to learn about our version of climate change?”

His arguments come at a time when sexual assault remains one of the most underreported, underinvestigated and underprosecuted crimes in Canada. Only one in 20 sexual assaults are reported to police, according to the federal ombudsman. Of the reported cases, only 12 per cent result in a criminal conviction within six years, compared to 23 per cent of physical assaults, said Statistics Canada.

“We’ve seen some troubling comments by the judiciary,” said Conservative MP Philip Lawrence to MacDonald. “Can the Canadian public feel confident that judges will not be making the same kinds of comments talking about sexual history or how women could’ve avoided sexual assault such as they could’ve manouvered their pelvis different?”

Lawrence was referring to former judge Robin Camp’s questions during a sexual assault trial in 2014 where he questioned the complainant’s morals, referred to her as the accused and asked her why she couldn’t keep her knees together.

“We can never give a guarantee,” answered MacDonald. “But one guarantee is we are doing our darndest on a number of fronts. We would like a compromise. Less mandatory language and still achieve the goal of the legislation.”

Proposed by Rona Ambrose

Mandatory training was originally put forward in a 2017 private member’s bill by interim Conservative party leader Rona Ambrose, which also had all-party support. It did not clear the senate before summer break last June and an election was called, but was reconfigured as a public bill this parliamentary session.

Judges in superior courts across Canada preside over and sometimes decide the verdict for the most serious sexual assault trails, but they’re not required to take specific training in this area of law. Recent verdicts have been overturned in upper courts, as judges made significant mistakes on issues of consent, or relied on misconceptions about how victims should behave.

The objective of the bill “is to enhance public confidence and, in particular, the confidence and trust of survivors of sexual assault that the criminal justice system will treat them fairly,” Justice Minister David Lametti told the committe.

“The bill will ensure them that when they do come forward they will be treated fairly by judges who have knowledge, skills and sensitivity to apply what is a complex and nuanced area of the law.”

Bill C-5 would amend the Criminal Code to mandate judges are trained when they’re appointed, and throughout their careers about principles of consent, rape myths and stereotypes and the broader social context. Courses would be developed in consultation with sexual assault survivors and support organizations.

MPs also want the judicial council to report annually on what training was offered and the number of judges who attended, and for judges to provide recorded or written reasons for a verdict in judge-only sexual assault trials.

Justice Adele Kent, from the National Judicial Institute, told the committee judges already receive this type of training when they’re first appointed, and again three to five years later. They also have access to video seminars that cover sexual assault law, she said, and every judge is expected to complete 10 days of education a year.

“I think without legislation, judges know they have to treat everybody with respect and take the needed education to do that,” Kent said.

The vast majority of sexual assault cases are overseen by provincial and territorial-level judges — Kent said 95 per cent, Lametti 80 per cent. The minister said he’s spoken to these governments about enacting similar legislation, and will speak to his colleagues about introducing it in other ministries, such as border services and corrections.

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