Law Times

Page 4 March 6, 2017 • Law TiMes www.lawtimesnews.com Education for new judges? Bill aims to mandate sexual assault training for judges BY DALE SMITH For Law Times A bill from federal inter- im Conservative party leader Rona Ambrose would mandate that all new judges receive training in dealing with sexual assault cases, but lawyers and judicial experts wonder if there aren't better ways to deal with the per- ceived problem of a court system that re-victimizes complainants. Bill C-337, the Judicial Ac- countability through Sexual Assault Training Act, aims to amend the Judges Act to require that anyone considered to be nominated to the bench have "completed recent and compre- hensive education in sexual as- sault law that includes instruction in evidentiary prohibitions, prin- ciples of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associat- ed with sexual assault complain- ants." Furthermore, it seeks to make sexual assault law part of ongoing judicial education. "It does seem a little bit un- usual to see something like ju- dicial education being mandat- ed through a federal bill," says Anne-Marie McElroy of McEl- roy Law in Ottawa. McElroy handles sexual as- sault cases and she says that, while "it's hard to say that [the bill is] a bad idea," it may not achieve its intended goals. "I don't think that just judicial education will do everything that they're seeking to do," adds McElroy. If passed, the bill would im- pose reporting requirements from the court system on what training is available to judges and what has been taken up. It also proposes to amend the Criminal Code so that judges handling proceedings related to sexual offences or assaults must provide written reasons for a decision where the defendant is acquitted, discharged, found guilty of the offence, found not criminally responsible on account of mental disorder or found unfit to stand for trial in respect of the offence. "I think enhancing the cap- acity of the courts to respond to the multi-faceted dynamics of sexual assault is critical and ne- cessary, but the concern is that the same can — and should — be said about many other areas of social context for judicial pro- cess," says Lorne Sossin, dean of Osgoode Hall Law School at York University in Toronto. Sossin cites mental health issues, indigenous communities and cross-cultural competencies as other areas where there are concerns. "Picking a single, albeit im- portant, dynamic and requiring that education when we other- wise do not make judicial educa- tion mandatory may be difficult to justify," says Sossin. "Additionally, those who want to see mandatory educa- tion typically also have some views on the content of that edu- cation." When announcing the tabling of the bill, Ambrose stat- ed that sexual assault complain- ants don't have confidence that the courts will treat them fairly. "I don't think that anyone can deny that there's been a growing movement in Canada to recognize the challenges and indeed the trauma often experi- enced by those who go through sexual assault cases in court," Ambrose said. "Very often, they involve very personal information that most of us try to keep private, and too often, those involved in these cases come away with the feel- ing that they've experienced not just a judgment in their cases but also a judgment in their character." Ambrose didn't cite any particular cases when asked by reporters, but she simply stat- ed, "You know there's many of them." Ambrose added that there was a lack of transparency in the court system as to whether or not judges have training in sex- ual assault law. "There is no requirement that a presiding judge have specific training or experience in sexual assault law," Ambrose said. Ambrose did not respond to a request for an interview by Law Times. Sossin says Ambrose's com- ments suggest that she is not interested in the education the National Judicial Institute might develop but rather that she has a particular kind of education with a particular outcome in mind. "Even if I personally agree with that outcome, as we go down this road, interference with judicial independence inevitably will arise as a risk," says Sossin. "It is a risk that currently is addressed by providing robust judicial education, principally through the National Judicial Institute, but making all of it both encouraged and voluntary. "If we move to mandatory training, especially in areas and with outcomes set out by the Legislature, we open up a new avenue for eroding the necessary and important separation of the judiciary from other branches of government." Sossin says that the goals Ambrose cites can be achieved by other policy means, includ- ing reforming Criminal Code provisions, policies around law enforcement and Crown pros- ecutor approaches to sexual as- sault, access to funding for legal aid for victims and survivors' services and targeted funding for the NJI to develop training materials in the field. "These other measures have the added benefit of achieving a more responsive and effective justice system without the risk of eroding judicial independence," says Sossin. While McElroy doesn't see the same impact on judicial in- dependence, she says that pro- viding Crown prosecutors with more resources would be a more effective way to go about achiev- ing the bill's goals. "In speaking to colleagues of mine that are Crowns, they have less time than they would like to prepare for their cases and often don't have enough time or resources to meet with com- plainants and really go through their statements with them and really properly prepare them for what the court experience will be like," says McElroy. "From the defence perspec- tive, when I am preparing a client for trial, I spend a lot of time with them, going over in examination-in-chief and in cross-examination so that they know what to expect that they're prepared for it. "This is often missing from the experience of complain- ants, through no real fault of the Crowns." McElroy says that it may be appropriate to ensure that civil litigators have adequate sexual assault training if they are being appointed to the Superior Court, as they would not have the same experience as criminal defence lawyers or former Crown pros- ecutors. "At the end of the day, the judge's role is to assess the re- liability and credibility of the witnesses and to act as the gate- keeper for what evidence should be going in and not going in," says McElroy. "To actually accomplish what's in the preamble [of the bill], they'll need to have a more multi-pronged approach." Justice Adèle Kent, executive director of the National Judicial Institute, declined to comment on the bill, citing a desire "not to stray into territory reserved for the executive and legislative branches." Former Supreme Court of Canada Justice Michel Basta- rache, who is currently in pri- vate practice but affiliated with firm Power Law in Ottawa, says that the NJI makes consulta- tions throughout the year when it comes to devising training for judges. "They are well aware of all the problems that occur in the courts, and they have very so- phisticated programs," says Bastarache. "Their programs are now be- ing adjusted to the situations in other countries and used there. "That is the proper channel for determining what is need- ed and how it should be done. I don't think Parliament or the department of Justice should be deciding on how these people, who are independent, should be trained." In question period on Feb. 23, Ambrose asked whether the government would support the bill. Justice Minister Jody Wil- son-Raybould would not offer a guarantee. "I think, without equivoca- tion, all members of the House recognize and acknowledge that sexual assault and gender-based violence is wrong and we have to do everything we can to prevent it," Wilson-Raybould respond- ed. "I look forward to reviewing the private member's bill in de- tail to see how we can continue with the objective of ensuring that victims of sexual assault are treated with respect and digni- ty." LT 5 th Annual Anti-Bribery and Corruption Compliance Toronto • Online | April 2017 COURSE LEADER John W. Boscariol, Partner, McCarthy Tétrault LLP COURSE HIGHLIGHTS • Anti-Corruption Landscape For Canadian Companies • Review Of Key CFPOA Convictions • The US Foreign Corrupt Practices Act • World Class Ethics & Compliance Program: The View From SNC-Lavalin • The UK Bribery Act: Extraterritorial Application To Canadian Companies • The Perspective From In-House Counsel: Compliance Challenges And Solutions • Investigating Potential Breaches Within The Company And Dealing With Enforcement DATE & LOCATION Toronto: April 25th, 2017 St. Andrews Club and Conference Centre 150 King St West, 27th Floor, Toronto, ON M5H 1J9 Live webinar: April 25th, 2017 FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca Email: lexpert.questions@thomsonreuters.com Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Professional Developments at 1-877-298-5868 NAVIGATING MUDDY WATERS EARLY BIRD ENDS MAR.24 Untitled-1 1 2017-03-03 10:58 AM NEWS NEWS NEWS Anne-Marie McElroy says it may be appro- priate to ensure that civil litigators have adequate sexual assault training if they are being appointed to a superior court.

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