The idea of mandatory and comprehensive legal training in Canada's sexual assault laws is proving to be a hot topic at a week-long seminar for new federally appointed judges.
Dozens of judges appointed to Canada's superior courts last fall and this spring are attending classes this week in Quebec, to which CBC News was granted rare, limited access.
"It's no secret that the judiciary is under scrutiny, indeed quite properly so in some instances, with respect to the handling of sexual assault cases," Neil Wittmann, chief justice of Alberta's Court of Queen's Bench, told the new judges.
That scrutiny comes from Canadians who've expressed disgust and outrage at a number of recent decisions in cases involving sexual violence. Each one, in some way, relied on discredited myths about sex and women.
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Retired B.C. Supreme Court Judge Lynn Smith told the new appointees that, even though the rates of violent crime are falling, the number of reported sexual assaults remains steady. Not only that, conviction rates for sexual assault fall far below those for other violent crimes.
"The continuing high incidence, the continuing low reporting rate, the fact that very few cases go to trial and that there's a very high level of scrutiny and suspicion about the criminal justice system are as a result of those factors," she said.
Smith then outlined some of the outdated rape myths that stubbornly persist in and outside Canada's courtrooms.
They include the belief that honourable women always scream and fight their attacker, victims immediately tell someone what happened, and women are less credible if they've had more sexual partners than what is suggested during a trial to be acceptable.
"I think we all know the Ewanchuk case, out of Alberta. And what the Supreme Court of Canada said in the case was very clearly that non-consent is measured by a subjective standard. It's measured by whether the complainant in her own mind wanted the sexual activity to take place," Smith told the group.
Yet there's nothing in place to ensure judges actually do know the case of Steve Ewanchuk, who was at the centre of the "no means no" case from 1999.
Judges are, after all, lawyers who have been appointed to the bench. While some may have defended or prosecuted people in criminal cases, others may have specialized in immigration or environmental law. It's a mixed bag.
All new federally appointed judges are invited to two weeks of judge school, which covers a wide variety of topics — everything from the admissibility of confessions and managing pre-trial motions to judgment-writing and dealing with people who show up at court without a lawyer.
Advice on sex assault reporting
The seminar on the social context of sexual assault was not exhaustive and Smith strongly encouraged participants to take advantage of the more in-depth classes offered by the National Judicial Institute at a later date.
Near the end of her presentation, when CBC cameras had left the room, Smith set out a hypothetical scenario for the judges.
She asked what advice they would give to a daughter, niece, close female friend or co-worker who told them they'd been sexually assaulted and wanted to go to the police to pursue a criminal charge.
No one raised a hand.
Smith prompted the group two more times before a few participants said they would only feel comfortable referring the woman to support services, otherwise it might be perceived as a conflict of interest to give legal advice.
Training for judges
The National Judicial Institute offers several courses for judges beyond the course for new appointees. They include:
- The realities of incarceration.
- Safety and security of women.
- Working with warrants and wiretaps.
- Preventing wrongful convictions.
- Hearing and deciding Charter issues.
- Family law: evidence and procedure.
- Indigenous law seminar.
Private member's bill
Given that so few people report sexual assault and so few cases ever go to trial, interim Conservative Party Leader Rona Ambrose says judicial education is crucial.
"Shouldn't we expect that the judge overseeing the trial understands sexual assault law and also understands that the accused, the potential rapist, doesn't have a right to use stereotypes and myths about the woman who is the potential victim in this case," she asked.
Ambrose is championing her first private member's bill. It would require anyone who wants to be a judge to complete in-depth education on the laws pertaining to sexual assault. Courts would also have to provide written reasons in cases involving sexual violence.
"I think in a written decision the judge is more careful with their language," she said, "and it provides the complainant, the victim, with some kind of closure — because a lot of times they have a hard time dealing with what's going on in the courtroom, but they have something in writing, they can go back and look at it."
Canada's chief justices meeting in Ottawa this week are also talking about judicial education. The Canadian Judicial Council is looking at formalizing a mandatory training policy for new judges, which according to council executive director Norman Sabourin, has been in the works for a few months.
Wittmann supports the idea but others aren't so keen.
"I know a lot of judges resist that, say it's a threat to independence," he said. "I express some disagreement with that, so long as all you're asking is, 'please keep up with current social context, developments in the law.' In other words, be on your toes."
Unclear whether government supports bill
While the New Democrats support Ambrose's bill, it's unclear if the government does.
"I'm going to keep holding [Prime Minister Justin Trudeau] to account. If he wants to call himself a feminist at the UN, then when he gets home he needs to act like one and this is a very simple ask," Ambrose told CBC.
The recent federal budget does include $2.7 million for judicial education.
"Yeah, I have had meetings in the last week and we are going to ramp it up," said Justice Adèle Kent, executive director of the National Judicial Institute.
Kent explained the plan is to emphasize online access to training. That way provincially appointed judges would have improved access to educational resources. As one might expect in Canada, different provinces offer varying levels of resources for judicial training.
Once it became apparent last year that there was a need for more legal education on sexual assaults, Kent said she got to work on educational videos judges may watch in their chambers to help them manage trials and explore rape myths and stereotypes.
Kent said the federal and provincial governments should sit down and talk about more ways they can cooperate on judicial education.
"I say to the federal government, it's your Criminal Code, your [Youth Criminal Justice Act], your Controlled Drugs [and Substances] Act, Immigration Act and much of this is being interpreted by provincial court judges — and isn't it important that they get education?"
And while sexual assault cases are in the news, Kent argues all new judges at every level would benefit from more comprehensive education. She knows that firsthand.
"When I became a judge 23 years ago, I had no idea how to grant a divorce to someone because I had never done family law. So you need to tune up all the judges," Kent told CBC.