The best intentions don't always make good policy. Bill C-337, currently at second reading in the Senate, is a case in point. The bill intends to make sure that judges hearing sexual-assault cases have received the proper legal and social-context training. The goal is to ensure that they are not subject to the myths and stereotypes associated with sexual-assault complainants.
In the words of the bill's author, former Conservative interim leader Rona Ambrose: "Right now, we have a system whereby judges are presiding over cases, and they're not trained. That's not appropriate. It makes no sense. If you go through something as horrific as a sexual assault and you take it as far as to go to trial, I would hope you would at least have someone presiding over the trial who understands the law."
The bill was approved unanimously by the House of Commons and there is little doubt that it will receive the support of a very large majority of senators. Indeed, who would vote against judges being properly trained to hear sexual-assault cases? Hasn't the necessity of such training been amply demonstrated by the controversial remarks of former justice Robin Camp ("Why couldn't you just keep your knees together?"), who resigned after the Canadian Judicial Council recommended his removal?
There are four reasons why I'm not in favour of this bill.
One, it aims at the wrong target. For obvious constitutional reasons, Parliament's jurisdiction over judicial-appointment requirements extends only to federal judges. However, most sexual-assault cases are heard by judges appointed by provincial governments. When Bill C-337 becomes law, it will have no effect on the training of these judges. Had it been the law of the land in the days of former justice Camp, it would not have affected him, since he was a provincial judge when he made his remarks.
Two, because the imposition of specific courses on sitting judges would have egregiously infringed on judicial independence, Ms. Ambrose decided instead that such training should be required from all lawyers applying for a federal judicial appointment. In practice, this means that each year some 500 lawyers who submit their application will have to demonstrate completion of a "recent and comprehensive" course on the matter. Out of those 500 applicants, roughly 50 will be appointed to a court under federal jurisdiction. As such, nine out of 10 seminar attendees will never sit as judges and, if they do, they will rarely if ever hear a sexual-assault case. In my view, this is a huge waste of time, money and energy, all of which will only add to our already heavily burdened legal system.
Three, the bill provides that each year, the Canadian Judicial Council will be required to make available the number of sexual-assault cases heard by judges that have not attended the sexual-assault law seminars. Based on this information, the practice of "tracking" absentee judges is open to serious abuse. This is an unacceptable infringement on the underappreciated yet fundamental principle of the independence of the judiciary.
And four, federal and provincial judges already receive sexual-assault-law and social-context training. It may be the case that even with this training, some decisions unjustly deny the victim's rights; such judgments, as unfortunate as they are, are already remediable through the appeals process. It may also be the case that some judges have not attended the training sessions or have failed to get the message. In these situations, complaints can be brought before the Canadian and provincial Judicial Councils. In addition to these available measures, the Canadian Judicial Council has announced that all initial training seminars, including sexual-assault education, will be mandatory for newly appointed federal judges.
Voting in favour of Bill C-337 may make us feel good as legislators. It will give us the impression that we are doing something to help the victims of sexual assault, for whom the judicial-system experience is always trying, to say the least. The truth is, once it becomes law, C-337 will not do a thing to change this sad reality. What it will do is put an additional burden on the shoulders of our legal system. More importantly, the tracking of judges – a disciplinary mechanism designed by politicians – will infringe on the principle of judicial independence, a pillar of Canadian democracy.
Senator André Pratte represents De Salaberry, Quebec. He is a member of the Senate Committee on Legal and Constitutional Affairs, the Senate Committee on National Finance and the Senate Committee on Agriculture and Forestry.
This article appeared in the September 1, 2017 edition of the Globe and Mail.