One of the most frequent questions I get asked when I speak is: “Why aren’t judges required to take courses on gender-based violence (GBV)?”
Just last week, I delivered two trainings in different parts of Ontario, and this question came up — more than once — in both of them. I carefully explained, as I always do, that the Constitution gives the judiciary autonomy, which means that governments cannot pass legislation requiring judges to learn about particular topics or issues. Further, even when judges agree to be educated about what are considered “social context” topics, which includes GBV, they generally prefer to educate themselves, without benefit of involving those who have specialized and relevant expertise. There seems to be a concern, among some judges, that to include those folks might result in judges becoming biased rather than educated.
This never satisfies my audiences, and nor should it. The lack of judicial education on many social context topics, including GBV, leads to poor outcomes in courtrooms across Canada.
Some background
There have been many attempts to increase judges’ awareness about GBV. Ontario’s Domestic Violence Death Review Committee has recommended mandatory education for judges (and lawyers, as well as professionals in many other fields) many times in the 20 years it has been reviewing domestic violence related deaths. The 2022 CKW Inquest recommendations called for judicial education on intimate partner violence.
In 2021, Bill C-3 was passed federally, which amended the Judges Act to require new judicial appointees to “undertake to participate” in ongoing education on sexual assault.” This Bill also suggested that the Canadian Judicial Council consult with survivors and community-based experts in the development and delivery of such education. Two years later, the federal Bill C-233, more commonly known as Keira’s Law, was passed. This Bill expanded the reach of judicial education for federally appointed judges to intimate partner violence and coercive control but, as with Bill C-3, was permissive rather than mandatory. (A year later, Ontario passed its own version of Keira’s Law, which is aimed at provincially appointed judges.)
And yet, many of those appearing in criminal or family court as a result of GBV and many of their support workers continue to report an atmosphere of disbelief, suspicion, ignorance and even hostility by some judges when these issues are raised.
A good model
Many years ago, I was part of a National Judicial Institute seminar on family violence for both family and criminal court judges. This was a multi-day course, developed and delivered by a team of judges, lawyers, Crowns, psychologists, academics and community-based experts.
Those who attended were self-selected, which meant we were talking to judges who already had some understanding of the importance of this issue. Nonetheless, there were more than a few participants who had concerns about bias.
One judge said to me after I spoke: “It sounds to me like you are saying we should automatically believe all survivors.” In response, and trying not to let my frustration show, I said: “No, I would just like you not to automatically assume they are not telling the truth.”
From my (no doubt biased) perspective, these seminars were really good. I came away with a much richer understanding of how difficult the job of a judge is, and I think many judges left better informed about the complexity of GBV and what that means in the context of the courtroom.
Despite this, to the best of my knowledge, there has not been such a seminar offered in more than a decade.
What now?
“[A] fear that certain kinds of education might create bias in the judiciary has historically proven to be a roadblock to much-needed judicial education, especially on topics like gender-based violence and other “social issues.” It is time to set that fear aside in favour of ensuring that judges . . . have the knowledge they need to correctly evaluate the evidence provided to them.”
This notion is reiterated and expanded on in a research paper entitled “Including Stakeholders in Judicial Education: The Politics of Judicial Accountability” published in May in the Canadian Bar Review.
Authors Professor Rosemary Cairns Way and Former Justice Donna Martinson note that legislative initiatives reflect a “public dissatisfaction with the judicial treatment of gender-based violence.” They call for increased transparency and the involvement of “expert public stakeholders in the development of education material on the social context of gender-based violence.”
“In our view, neither increased transparency, nor respectful collaboration with relevant public stakeholders pose a threat to judicial independence properly understood. Rather they are a necessary response to the complex relationships between judicial independence, judicial impartiality and judicial accountability in a legal system that takes women’s equality seriously.”
There is no doubt that judges need education about gender-based violence, whether they are hearing a family or criminal law case.
Keira Kagan’s mother, Jennifer, is almost single-handedly responsible for the passage of Keira’s Law at both the federal and provincial levels, after her daughter died at her father’s hands. As she testified before the Standing Committee on the Status of Women:
“I was before, I believe, between 10 and 12 different judges, none of whom had an understanding of domestic violence and coercive control. During my trial, when I went to the stand to talk about the abuse I had experienced, I was cut off by the judge and told that abuse is not relevant to parenting and he was going to ignore it.”
Ontario’s Court of Appeal, in the Jacob Hoggard sexual assault trial, determined that criminal trials do not need expert evidence about the impact of trauma on sexual assault survivors.
My list could go on.
Judicial education won’t fix everything that is wrong with how the law responds to GBV, but it’s an important part of doing so, as long as it is done in a way that both maintains judicial autonomy and includes those with subject matter expertise in its development and delivery.
As Cairns Way and Martinson wrote in a 2019 paper:
“[P]ublic involvement in judicial education is the natural and inevitable result of the inextricable links between impartiality, equality and independence . . . [A] continuous and dynamic collaboration among judges, legal and other academics and community members with relevant experience and expertise characterised by respect and open-mindedness would be mutually beneficial.”