Linda Redgrave, who accused former CBC radio host Jian Ghomeshi of sexually assaulting her, is seen outside the Ontario court of justice in Toronto on May 11, 2016.Colin Perkel/The Canadian Press
Three months after a judge resigned for asking a rape complainant why she did not keep her knees together, the House of Commons has given unanimous consent to an opposition bill that would require training in sexual assault law, myths and stereotypes for anyone wishing to become a federal judge.
But the judicial establishment is skeptical about its usefulness amid questions about who will design the program, and what its content will be.
The bill, proposed by interim Conservative Leader Rona Ambrose, needs only Senate approval to become law. Opposition bills only infrequently become law in major areas of public policy, and the Liberals, who increased funding for judicial training this year, had dithered for weeks deciding whether to support the bill.
But in February, after a public inquiry, Justice Robin Camp of the Federal Court resigned over his conduct of a rape trial he conducted in 2014 as a member of the Alberta Provincial Court. Later, a Halifax judge acquitted a taxi driver of sexual assault, even though police had found the inebriated complainant unconscious in the taxi moments after the incident.
And more than 50 police forces across Canada have launched reviews of cases they had determined to be unfounded after a Globe and Mail investigation into police practices, all parties threw their weight behind Ms. Ambrose's bill.
"I think the bill is a great example of the power and currency of public concern over sexual assault," Carissima Mathen, a University of Ottawa law professor, said in an e-mail to The Globe. "I can't really think of a recent example in Parliamentary law-making that comes close." However, she expressed concern that building training requirements into the appointment process would delay the naming of new judges at a time they are badly needed to combat court delays.
The bill would impose mandatory training before candidates are considered for federally appointed courts such as the superior courts of provinces and the Federal Court. Ms. Ambrose said she designed the bill for candidates for the bench, rather than sitting judges, because of concerns about judicial independence.
Justice Minister Jody Wilson-Raybould told the Commons on Monday the bill "would indeed improve training for lawyers in terms of sexual assault."
Judges are not so sure. Neil Wittmann, who retired earlier this month as chief justice of the Alberta Court of Queen's Bench, says that in Alberta, new judges attend a 4 1/2-month training program that includes a component in sexual-assault law. "That said, are there some people who don't get it?" he said in an interview last week with The Globe. "I guess there are, but isn't that true in any field of endeavour, and will training make them get it?"
He also said the bill is vague in requiring that candidates be trained to the satisfaction of the judicial affairs commissioner, the head of the agency that provides administrative services to federally appointed judges.
"Is he or she going to set their own criteria? Are they going to have an exam to see if you can pass? Is it going to be online training? Is it going to be sitting in a lecture for a couple of days? I think the concept is laudable, but like any other concept, the devil's in the details."
Organizations representing judges questioned the bill's usefulness at committee hearings this month and last. Leaders of the National Judicial Institute, the Canadian Judicial Council and the Office of the Commissioner for Federal Judicial Affairs praised the "spirit" and goals of the bill, but said such training is already being provided to sitting judges.
Marc Giroux, deputy commissioner of the Office of the Commissioner of Federal Judicial Affairs, said more than 700 people have applied to be federal judges in the past six months. Given that number, such programs would either delay the process, or be brief and ineffective, he told the committee.
Adèle Kent, executive director of the National Judicial Institute, which trains federally and provincially appointed judges, told the committee she worries pre-appointment training will not be effective. "The real effectiveness of judicial training is that they are judges. They know they're in the seat."
Norman Sabourin, executive director of the Canadian Judicial Council, which represents chief and associate justices, raised concerns about judicial independence, saying the bill's focus on candidates rather than sitting judges "may be an attempt to do indirectly what you cannot do directly" – legislate the training requirements for the judiciary.
He added that, because the bill's objective is training, candidates should be required to sign an undertaking to take training in sexual-assault law, rather than take the training beforehand.
But University of Calgary law professor Jennifer Koshan, an expert in sexual-assault law who has led training sessions for Alberta judges, expressed a point of view that the Status of Women committee, and ultimately, the Commons, found persuasive.
"We are currently seeing a profound lack of confidence with respect to the justice system's handling of sexual-assault cases," she said. "I think it's crucial for us to keep in mind that sexual assault remains the most under-reported crime in Canada, resulting from many different barriers in the justice system. I believe training for all the players in the justice system is key to facilitating access to justice in sexual-assault cases."
Sean Fine