David Butt is a Toronto-based criminal lawyer.
In the wake of some egregious rulings by judges in sex-assault cases, the House of Commons recently passed a bill requiring federal judgeship applicants to complete a course on sexual-assault law. The bill is now before the Senate, where critics say it risks eroding judicial independence.
Judicial independence is central to any vibrant democracy; so the critics of the bill are right to raise concerns. But informed democratic debate is invariably messy because the underlying values in play rarely align perfectly. And this debate is no different. Because competing here with judicial independence is the sensible imperative that judges applying the law to the rest of us must demonstrate understanding of who we are as a community. And judges cannot possess that understanding without in-depth education.
So first, consider judicial independence. Judges are the peacemakers we need when we find ourselves in a serious dispute. For all the legal system's shortcomings, judges still replace quite well what would otherwise be endlessly escalating rounds of traumatic private vengeance. Few of us feeling egregiously wronged would forego private vengeance without a very high level of confidence that judges are truly independent. So while judicial independence sounds like an esoteric concept best left to to governance geeks, it is all that stands between us and the chaos of perpetually feuding mini-fiefdoms.
We must always be vigilant of well-meaning initiatives that might erode judicial independence – and government-imposed educational requirements could certainly pose that risk. Ideology inevitably lurks just beneath the surface of much curriculum design, which means education perpetually risks favouring the value set of the program designers. So forcing judges to undergo government-built training programs would at least appear to compromise their independence.
On the other hand, the days are long past when, like so many obsequious serfs, we defer unthinkingly to the pronouncements of some judicial elder in 16th-century robes simply because they sit in the highest chair in the courtroom and are called "Your Honour." Judges earn and deserve our respect only to the extent they make well-reasoned decisions that thoughtfully embody our shared values. And it is simply asking too much of most judges that they would ascend to the bench with all of the requisite wisdom and expertise perfectly baked and ready to dispense.
Imagine a typical judicial appointment: a good lawyer who, consistent with current professional trends, has spent a couple of decades developing an increasingly narrow expertise in one area of the law. Now imagine a typical Superior Court judge: one who in a typical year may decide sex-assault cases, child-custody cases, business disputes and medical malpractice lawsuits. After a career as a specialist lawyer, the person elevated to the bench overnight becomes a generalist judge. That transition is unmanageable without robust judicial education.
Currently, the need for both resolute independence and robust education is pursued by leaving it to the judiciary itself to design and deliver its own education with the help of carefully curated panels of outside experts. But this "leave it to us" approach is reasonably seen as insufficient when, as now, we experience repeated bozo eruptions from judges in highly sensitive sex-assault cases. In these exceptional circumstances, confidence in the judiciary plummets, so it is appropriate for another branch of the government, the democratically elected branch, to step in and help restore confidence, because judges are having a tough time doing that themselves.
The Supreme Court has wisely observed that the relationship between an independent judiciary and a democratically elected legislature is not one of mutual disregard nor mutual hostility, but rather an ongoing conversation between institutions with different mandates but a shared objective of sound government. And in this conversation, it is okay for one participant on occasion to thoughtfully tell the other to pull up their socks.
That is what Parliament is doing with its limited bill on sexual-assault training for aspiring judges. The bill is not a grand fix for all that ails the courts, nor is it a hostile takeover of judicial education that would undermine independence. Rather, it is a timely reminder that demonstrating basic judicial competence is essential to maintaining respect for the judiciary, upon whom we all depend heavily for social peace.