Elizabeth Sheehy is a professor emeritus at the University of Ottawa’s Faculty of Law. Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie University and the research director of the Canadian Centre for Legal Innovation in Sexual Assault Response.
Persistent gaps in judges’ knowledge about Canada’s sexual assault law have provoked a crisis of public confidence in the criminal justice system’s handling of sexual assault allegations. Unfortunately, the federal government’s solution, the recently passed Bill C-3, is not remotely capable of delivering its promises to sexual assault survivors.
Bill C-3, which became law May 6, claims to improve the criminal justice system’s response to sexual violence in two ways: first, by ensuring that judges who preside over sexual assault cases are sufficiently educated in sexual assault law; and second, by requiring that decisions in all sexual assault cases be available for public scrutiny, in order to enhance transparency and accountability.
These are important objectives.
Notorious sexual assault decisions in recent years have exposed gaps in judicial knowledge and failures to properly apply the law of sexual assault. There was the Wagar case, in which former judge Robin Camp committed multiple legal errors and shockingly asked the complainant why she didn’t keep her knees together.
There was the 2018 Halifax taxi driver case, in which the trial judge committed legal errors regarding capacity to consent, and made the insensitive and unnecessary comment that “clearly a drunk can consent.”
The 2019 Supreme Court of Canada decision in R v Barton, regarding an Indigenous woman found dead in the bathroom of the accused’s hotel room, also illustrates how serious these judicial errors can be. In the original trial, the judge failed to apply rules of evidence properly, neglected to insulate the jury from misogynist and racist myths and stereotypes, and made errors regarding the legal definition of consent.
While judges cannot be expected to know everything, they must understand the basic legal principles in any case they preside over.
Bill C-3 requires applicants to the federal judiciary to commit to participating in judicial education seminars on sexual assault law as a criterion of eligibility. In other words, it requires candidates to say they will take training rather than requiring them to take training. It stipulates that the Canadian Judicial Council (which is responsible for training judges) should, as it “considers appropriate,” teach judges about consent and the conduct of sexual assault proceedings, as well as provide education regarding myths and stereotypes associated with complainants. It says the Council should submit an annual report regarding the content of such seminars and the number of judges who attended them.
In the original version of this law, introduced by former leader of the opposition Rona Ambrose, these were mandated educational initiatives and mandated reporting obligations, not mere suggestions.
The government’s chosen mechanism for increasing transparency and accountability is equally toothless. Judges in many sexual assault cases issue oral decisions that are never publicly reported. Absent the Crown’s decision to appeal or a journalist’s decision to report, sexual assault cases involving oral decisions provide almost no opportunity for scrutiny by researchers, legislators or the public, let alone the survivor.
For example, Robin Camp’s multiple legal and discriminatory errors only came to public attention because his decision was appealed. The legal errors and problematic linguistic choices of the original trial judge in the Halifax taxi driver case only entered the public arena because a journalist happened to be in the courtroom for the judgment. If judges were required to make their sexual assault judgments public, the recent conviction of an Ontario woman for breaching a publication ban by sharing a judge’s decision to convict her ex-husband of sexually assaulting her would not have occurred.
Bill C-3′s response to this problem is to require judges in sexual assault proceedings to give reasons for their decisions, and if the proceedings are not recorded, provide those reasons in writing. This provision adds absolutely nothing to the law. Trial judges are already required to provide reasons for their decisions to convict or acquit.
Furthermore, all criminal proceedings are currently recorded, making the bill’s requirement to provide written reasons if the proceedings are not recorded meaningless. Few people have the resources to request that recorded proceedings be transcribed and the bill does nothing to make these decisions public.
Not only does this fail the public, but sexual assault survivors deserve to have access to the reasons for a judge’s decision in their case. We at least owe women the dignity of an explanation that they can read and process when an accused is acquitted.
We need legislative requirements that oral reasons be made available publicly through the court’s website and that make sexual assault law education mandatory. Bill C-3′s stated goals of enhancing judicial transparency and accountability, and generating public confidence in the judiciary’s ability to properly adjudicate allegations of sexual violence, are a meaningless political gesture, not a commitment to survivors.
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