Canada’s chief justices have spoken up against a proposed federal law that would make courses in sexual-assault law mandatory for judges, saying judges should not be told what to think.
Michael MacDonald, interim executive director of the Canadian Judicial Council, told the Commons justice committee that making such courses compulsory, while well-intentioned, sets a dangerous precedent for driving “controversial educational initiatives down the throats of judges.”
The proposed law requires the council to provide education on, among other things, myths and stereotypes about sexual-assault complainants. Candidates for federally appointed courts would need to promise to receive such instruction if they become judges. Imagine, Mr. MacDonald said, that a government comes along in five, 10 or 20 years to say that judges must be instructed that residential schools for Indigenous children, the Holocaust or climate change are myths.
“You would want the judiciary to stand bravely, courageously, and say, ‘you can’t tell us what we have to learn. If you tell us what we have to learn, you tell us what we have to think, arguably.’ ” Mr. MacDonald is a former chief justice of Nova Scotia. The Canadian Judicial Council, which is chaired by Supreme Court Chief Justice Richard Wagner, is a body of chief and associate chief justices.
The bill, known as C-5, is a response to a public perception that some judges still are in the Dark Ages in sexual assault cases. The law would order the judicial council to offer education in sexual-assault law and social context to members of the superior courts of provinces (a federally appointed post). It would also mandate an annual report from the council, to be tabled in Parliament, on the sexual-assault courses given and the number of judges who attended. Mr. MacDonald said the spirit of the law was positive, but asked that neither the creation of such courses, nor their content, nor the annual report, be mandatory.
The law was inspired by a private member’s bill introduced three years ago by then-Conservative MP Rona Ambrose, which would have required candidates for federally appointed courts to take a course in sexual-assault law and social context. Ms. Ambrose pointed to cases in which judges such as Robin Camp, who at the time served on a provincially appointed court in Alberta, asked a rape complainant in a 2014 trial why she hadn’t simply kept her “knees together.”
Ms. Ambrose’s bill died in the Senate last June before the fall federal election. Justice Minister David Lametti introduced a similar bill last month applying to sitting federal judges.
The bill’s purpose, Mr. Lametti told the justice committee on Tuesday, is to give all Canadians, especially victims of sexual assault, confidence in the justice system’s fairness. Most victims, he said, do not report sexual assaults because of a fear they will be humiliated or criticized.
He told the committee it was premature to comment on Mr. MacDonald’s proposed amendments to the legislation – such as changing “shall” to “should” so the courses are not mandatory – because he has not seen them yet.
But he rejected Mr. MacDonald’s concerns about a dangerous trend. “I will admit I am less worried about a trend; in fact, I’m not worried at all.” Judicial independence is well entrenched in the legal system, he said, adding that the proposed law is a response to a couple of high-profile cases in provincial court that demonstrated more training was needed.
The “knees together” comment from Mr. Camp, which led to the end of his tenure on the bench, was top-of-mind for committee members. A Conservative MP, Philip Lawrence, paraphrased the comment for Mr. MacDonald, asking whether the public can feel confident that judges would not make similar comments or refer to a complainant’s sexual history.
“We can never give a guarantee,” Mr. MacDonald replied. “We are doing our darnedest on a number of fronts. That was so upsetting to everybody. You can rest assured that we are daily conscious of this.”
Most sexual-assault trials (95 per cent, according to Mr. MacDonald, and 80 per cent, according to Mr. Lametti) are held in provincial courts, which are not covered by the proposed federal law. Mr. Lametti said he is encouraging his provincial counterparts to introduce similar legislation. Prince Edward Island has done so, and other provinces are contemplating it, he said.
Adèle Kent, executive director of the National Judicial Institute, told the committee her group provides extensive training in sexual-assault law and social context to federal judges, with some training available for provincial judges.
“In our humble opinion we are on top of this,” Mr. MacDonald said.
Sean Fine