Forward or backward?

Some days it is hard to know whether or not we are making progress in addressing gender-based violence. It often seems that for every step we manage to take forward there is one of at least equal size that moves us backward. A recent bill introduced by the federal Liberal government demonstrates this effectively.

Good news

In 2017, then interim leader of the Conservative Party Rona Ambrose introduced a private member’s bill called the Judicial Accountability Through Sexual Assault Law Training Act, which was sponsored by then leader of the NDP Thomas Mulcair. Largely a response to the Robin Camp affair — the judge who made a number of highly inappropriate comments (“Why didn’t you just keep your knees together?” being one of them) before acquitting the accused in an Alberta sexual assault trial — the Bill made its way through the House of Commons very quickly. Once it hit the Senate, it stalled – and has been there ever since.

On February 4th, Justice Minister and Attorney General David Lametti introduced Bill C-5, An Act to Amend the Judges Act and the Criminal Code which, if passed, will do most of what Ambrose’s bill would have done: mandate sexual assault training for newly federally appointed judges, require the Canadian Judicial Council to report on efforts to provide similar training to sitting judges and amend the Criminal Code to require judges to put their reasons on the record in sexual assault cases.

Rona Ambrose, who now works in the private sector, stood with Lametti and Minister of Women and Gender Equality Maryam Monsef, at a media conference announcing the new Bill. She said:

“There are some issues . . . that really are above politics. Supporting victims of sexual assault . . . is one of those issues.”

This Bill has the potential to make a positive difference. It is very heartening – especially with a minority government in place – to see cross-party support for such an important initiative. We can only hope that the Bill will pass quickly through the House of Commons and that the Senate will not stall its progress as it did last time.

Bad news

But, it will only ensure education of newly appointed federal judges. Those who are already appointed, some of whom have been around for a very long time, are not required to be educated.

The legislation only applies to federally appointed judges, which means provincially appointed judges in lower courts – where many, many sexual assault trials are heard – are not covered. It is up to the provinces to mandate such education which, at least in Ontario right now, seems unlikely.

Some of the teeth in Ambrose’s original bill have been lost; perhaps most notably, the requirement that sexual assault advocates be involved in the development of the education curriculum.

Even so, criminal defence lawyers are not happy. President of the Criminal Lawyers Association John Struthers questions whether this education might not be a case of the government putting its “finger on the scale of justice” to try to get a certain outcome:

“Education is great, the content of it is going to be suspect. We would want an opportunity to present with respect to the eventual courses that may be given to judges because we want them to be balanced and we want them to understand that there are very much issues of fair play, balance and justice that are involved in making sure that people get a fair trial and are not presumed to be guilty.”

So is it good or bad?

It is too early to say whether this Bill will make the difference it promises. It needs to pass quickly, because minority governments are often short-lived. Its content has made it through the House of Commons once before, only to be sat on by the Senate.

Without similar provincial/territorial legislation to cover provincially/territorially appointed judges, the federal bill will affect relatively few sexual assault trials.

And, without ongoing improvements to police response to sexual assault complaints, reporting rates will remain low. When survivors don’t report, sexual assailants don’t get charged and they continue to sexually assault.

It is time for criminal defence lawyers to stop having an automatic knee-jerk response to any policy initiative that even begins to address the problems in the criminal response to gender-based violence. It is possible to build a criminal system that respects the presumption of innocence and the right of the accused to a fair trial without putting survivors of sexual assault through hell.

Is this bill perfect? Far from it. Do many survivors and advocates support it? Yes, because, despite its shortcomings, it takes one small step in the right direction.

As Rona Ambrose said:

“All we’re asking for really is that judges be educated in the law. If you’re a victim and you go to trial, that’s the least you should expect.”

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