- Kasia Kieloch (law student)
Judge Training on Sexual Assault: JUST may not be just
In light of the conduct of certain judges in their courtrooms, there have been questions about whether they need to be schooled on the topic of sexual assault. Judge Robin Camp, formerly a judge of the Federal Court of Canada, is known for asking a woman why she did not “keep her knees together” in a 2014 sexual assault trial.1 He resigned from being a judge after the Canadian Judicial Council recommended his removal from the bench.2
Judge John McClung, grandson of woman’s rights activist Nellie McClung, is infamously known for having said that a man’s sexual advances towards a sexual assault victim were “more hormonal than criminal” in the high profile Ewanchuk case in 1999.3 The perpetuation of rape myths in courtrooms is prevalent enough to get serious media attention in Canada.4 One federal politician has proposed a solution to the issue of judge insensitivity towards sexual assault.
Earlier this year, Interim Opposition Leader of the Conservative Party of Canada, Rona Ambrose, introduced Bill C-337: The Judicial Accountability Through Sexual Assault Law Training Act.5 Also known as the JUST Act, the legislation would make sex assault law training mandatory for judges.6 The training would involve discussing rape myths and increasing sensitivity towards victims of sexual assault. The bill also has a provision that would require the Criminal Code to be amended so that there is a requirement for courts to provide written decisions for sexual assault cases.7 Ambrose stated that the training requirement would help to address the issue of a lack of trust in the justice system from sexual assault survivors.8
The bill specifically mentions training for lawyers who would become future judges, and does not mention current judges. This is problematic because there are current sitting judges who continue to perpetuate rape myths, and they would not receive the training that appears to be a response to them. Additionally, the legislation only addresses future judges who are appointed federally, and not those who are appointed provincially. This leaves out a significant portion of judges across the country. It is strange that the training is not extended to currently sitting judges, because there is a significant amount of money in the federal budget for judge training. The 2017 federal budget has $2.7 million set for five years, plus $500,000 each year after that.9 This is a significant amount of money that should be used to train all judges.
The sexual assault training proposal is not exclusive to future federal judges. The federal status of women committee released a report that recommended that all judges and RCMP officers receive mandatory training on sexual assault and gender-based violence.10 This seems to suggest that there may be insufficient understanding about sexual assault and gender-based violence throughout the criminal justice system.
The federal government has not endorsed the proposed legislation, which may be a sign that it may wait to introduce similar legislation in the future from the Liberals. Status of Women Maryam Monsef suggested that there are potential jurisdictional concerns about mandating training, which raises questions about whether the legislation is constitutionally valid.11
From a procedural perspective, Ambrose’s bill is a private member’s bill, which is a category of bill that is difficult to pass because of the small amount of such bills that can be enacted each session along with more substantial bills. It would not be surprising if the federal government voted against the bill, or let it “die on the order paper”, meaning that it will not get addressed in the current legislative session, so that it can create its own version of the legislation. It is common in politics for governments to support legislation in principle, not pass it, and then to re-introduce it themselves, so that credit is not given to the opposition.
In addition to the legislation’s smaller than necessary scope of judges and its possible unconstitutionality, it is not known whether the training will prevent insensitivity and decrease the perpetuation of rape myths. Sometimes these attitudes seem to be based on a lack of understanding, which training can address. Other times, it seems that these attitudes are based on sexist opinions, beliefs, and stubbornness, which are difficult to change. Legislation cannot necessarily force people to change their attitudes and opinions.
Overall, Bill C-337 is very narrow in scope, and will not do nearly enough to address the issue of sexism and the perpetuation of rape myths in the justice system. It would not be just for the public to be given the impression that this legislation fixes the problem at hand. The bill is a step in the right direction, but there is certainly room for much more to be done.
1 Sean Fine, “’Knees Together’ Judge Robin Camp asks to Make Case for Job in Person”, The Globe and Mail (6 January 2017), online: http://www.theglobeandmail.com/news/alberta/calgary-judge-robin-camp-who-made-knees-together-comment-asks-to-keep-job/article33533651/>.
3 Erika Tucker, “21 Other Judges Have Made Offensive Comments to Complainants Without Removal, so Robin Camp Should Stay: Lawyer”, Global News (7 September 2016) online: <http://globalnews.ca/news/2926162/21-other-judges-have-made-offensive-comments-to-complainants-without-removal-so-robin-camp-should-stay-lawyer/>.
5 Sonja Puzic, “Ambrose Tables Bill on Mandatory Sex Assault Law Training for Judges”, CTV News (23 February 2017) online: <http://www.ctvnews.ca/politics/ambrose-tables-bill-on-mandatory-sex-assault-law-training-for-judges-1.3298432>.
7 Joanna Smith, “Rona Ambrose: Bill C-337 Not About Assigning Blame, but About Better Training for Judges”, Huffington Post (4 April 2017), online: <http://www.huffingtonpost.ca/2017/04/04/ambrose-pushes-feds-to-in_n_15805380.html>.
8 Supra note 5.
9 Supra note 7.