New legislation regarding sexual assault training for federal judges received royal assent on May 6, 2021. It comes in response to a series of sexual assault cases that drew public criticism, including comments which were perceived to be victim-blaming made by the presiding judge in R v Wagar, 2015 ABCA 327 (overturned on appeal in R v Wagar, 2017 ABPC 17), where the trial judge asked a sexual assault complainant why she couldn’t keep her ‘knees together’. Advocates for victims of sexual assault and the complainant in that case say that these sorts of comments evidenced a lack of empathy toward vulnerable victims and show disregard for the promotion of integrity in sexual assault cases.
Turning to another decision receiving public scrutiny, the Supreme Court of Canada in R v Barton, 2019 SCC 33, overturned a jury’s acquittal of a man charged with first degree murder in the killing of an Indigenous woman. The Supreme Court of Canada ordered a retrial based on a mishandling of evidence about the deceased’s sexual history, concluding it was improper for the jury to hear evidence with respect to the deceased’s sexual activity with the accused the night before her death, without going through the proper procedure for admitting such evidence as required by section 276 of the Criminal Code.
In response to these concerns, Bill C-3, An Act to Amend the Judges Act and the Criminal Code, adds an additional eligibility requirement before lawyers may be appointed to become judges of a superior court in any province. Specifically, they must “… undertake to participate in continuing education on matters related to sexual assault law and social context, which includes systemic racism and systemic discrimination, including by attending seminars …” The Bill specifies that the social context includes systemic racism and discrimination. The new legislation also requires the education seminars to be developed in cooperation with Indigenous representatives.
Further, Bill C-3 adds section 278.98 to the Criminal Code, which requires all judges sitting in provincial and superior courts to put their reasons on the record when ruling on sexual assault cases for which the accused is acquitted, discharged after being convicted, found guilty, found not criminally responsible, or found unfit to stand trial. The stated purpose of this requirement is that providing reasons for decisions in sexual assault cases enhances the accountability and transparency of the judiciary.
The Canadian Bar Association, which is the largest professional association for lawyers in Canada, has expressed concerns about Bill C-3. One apprehension is that it is unclear how the Bill would work in practice. For example, it does not clarify whether appointment of a federal judge may occur only after training is completed, who is to administer the training, and the specifics of how the training could be administered. As well, the Bill does not address who is to pay for the cost of training, nor the parameters of the training. Additionally, if a judge is appointed but then unable to complete the training, it is not clear what disciplinary actions, if any, should be taken. It is unclear who, actually, would take disciplinary actions against the judiciary.
A second worry that the CBA addresses is that many judges at the federal level are unlikely to hear sexual assault cases, and consequently will not use sexual assault training in their practice. For example, a judge sitting in Tax Court would never hear a sexual assault case, yet they would be required, by the federal government, to complete what the government deems to be mandatory training. As well, the training requirements are not applicable to judges appointed to provincial and territorial courts where many sexual assault cases are heard.
Lastly, the CBA is concerned with Bill C-3’s impact on the independence of the judiciary. Judicial independence means courts and judges perform their duties without influence from other actors, whether governmental or private, and instead that they make decisions based on admissible evidence applying the rule of law. With the introduction of Bill C-3, there is concern that the governmental branch is disregarding the importance of judicial independence and overstepping its duties. Moreover, there is already sexual assault awareness training and social context education provided by federal judicial institutions to federally appointed judges, so it should be questioned as to why the government is legislating its own programs to be followed instead.
Rather than having the government decide which areas of the law that judges should receive additional training in, perhaps the judiciary is better suited to develop legal education programs in areas that they see fit. While one may argue that this legislation works to restore public confidence in the administration of justice, protection from government interference is crucial in maintaining judicial independence.
Some provinces have adopted sexual assault training programs for law professionals, similar to that described in Bill C-3. In Saskatchewan, judges have been educated on sexual assault through means such as seminars, guest speakers, and formal training. Most recently in Saskatchewan, a program was developed in 2019 that provides judges, lawyers, and other justice system professionals with ongoing sexual assault education training, on subjects such as sexual offences in the Criminal Code, supports for survivors of sexual violence, courtroom tools that may be used in sexual assault cases, and the effects of trauma.
As for the impact that Bill C-3 will have on upcoming sexual assault cases, we will have to see. While educating legal professionals on sexual assault law is important, the vagueness of the Bill and its interference with judicial independence raises significant concerns.
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