The past couple of years have provided Canadians with more than ample opportunity to consider how Canadian judges handle sexual assault cases. Most notorious and best known, of course, was the trial of Jian Ghomeshi, a former icon of the Canadian entertainment business, who was acquitted of five charges of sexual assault in a highly publicized trial in 2016.
But there are other cases that have given us pause. Justice Robin Camp’s outrageous comments during a 2014 sexual assault trial eventually led to his resignation from the bench in 2017.
A Halifax judge stunned many when he acquitted a man charged with sexual assault, despite considerable evidence that the complainant was intoxicated beyond the point at which she could consent, saying: “Clearly, a drunk can consent.”
And, just last week, the story broke of an Alberta judge who incarcerated the complainant in a 2015 sexual assault trial because she “presented in a condition unsuitable for testifying.”
Not only was she held in jail for 5 nights, at times she was placed in a cell next to the accused and, on at least two occasions, was transported to or from the remand centre in the same vehicle as the accused.
Teaching judges about sexual assault
There may be a slightly silver lining to this very large cloud on Canada’s so-called justice system’s response to sexual violence. It appears that some Ontario judges will be required to receive some sexual assault education.
In Ontario, newly appointed provincial court judges will be required to participate in an education program that will include components on sexual assault as well as legal and equality issues. Current judges will not be mandated to attend this training, which is unfortunate, given that the headline stories over the past few years come from cases that were heard by judges with many years of experience on the bench.
But maybe not all judges
The situation at the federal level is less clear. While this year’s budget included $2.7 million for judicial education, how that money will be spent is undecided.
The National Judicial Institute (NJI) has responsibility for the training of federally appointed judges and already has courses and materials to assist judges understand sexual assault, but those courses are not mandatory.
To rectify this situation, Rona Ambrose, former interim leader of the Conservative party, introduced a private member’s bill earlier this year – Bill C-337 – that calls for would-be federally appointed judges to undergo sexual assault training prior to being called to the bench. Her Bill has reached second reading.
Canada’s rape culture
A recent report from the House of Commons committee on the status of women calls for all judges and RCMP officers to complete gender-based violence and sexual assault training. Committee vice-chair, Liberal MP Pam Damoff, said that the committee heard from witnesses
“about a pervasive climate of rape culture in Canada that normalizes, excuses and tolerates violence against young women and girls in public spaces, across universities and college campuses, and online.”
Will education make judges biased?
The concept of mandatory sexual assault training for judges does not have universal support.
According to CBC News, which was granted limited access to a recent training course for new federal judges, the idea is a hot topic among judges, some of whom fear a loss of judicial independence if they are required to learn more about sexual assault. http://www.cbc.ca/news/politics/judges-school-sexual-assault-laws-justice-1.4056483
The Canadian Judicial Council (CJC) has expressed concerns that such training – especially if sexual assault survivors and experts are involved in its development – could interfere with judicial independence, a highly touted value of Canada’s court system. An email from CJC spokesperson Johanna Laporte reads, in part:
“[W]e continue to have some concerns about the constitutionality of some aspects of the proposed law which may infringe on judicial independence. Specifically, . . . opening the door for special interest groups dictating the kinds of education judges should adopt.”
Really? Experts on sexual assault, people who have spent years learning about the impact of sexual assault; who have worked with hundreds, perhaps thousands, of sexual assault survivors; who understand the characteristics of trauma that many survivors of sexual violence experience and who know the law – these people are a special interest group?
Do you think for one minute that, for example, breathalyzer professionals who contribute to judicial education on drunk driving are considered to be a special interest group?
Of course not. They, like many other professionals involved in judicial education, are seen as experts with something valuable to offer judges as they learn what they need to know to handle the wide variety of cases that come before them.
Ahh, but I forgot for a moment. We are talking about sexual violence: that most unbelieved, under-reported, under-charged and under-prosecuted of all crimes in Canada, an all-too-common crime that has a shockingly low conviction rate. That those of us who actually know something about it are viewed with suspicion itself reinforces many of the rape myths that judicial education on sexual assault is intended to debunk.
How appropriate. Perhaps we should just keep our legs together, our mouths shut and let judges decide all on their own what they need to know about sexual violence.