Judicial continuing education in sexual assault law and social context

On September 25, 2020, the Minister of Justice and Attorney General of Canada reintroduced legislation in the House of Commons to amend sections of the Judges Act to address judicial continuing education.

Following the opening of the new parliamentary session on September 23, 2020, the new Bill was introduced in the House of Commons. The proposed changes contained in this Bill are the same as those proposed in former Bill C-5. This Bill would amend the Judges Act to require candidates seeking an appointment to a provincial superior court to agree to participate in training on matters related to sexual assault law and social context following their appointment. This would ensure that newly appointed judges participate in this important training.

The Bill is aimed at enhancing public confidence and sexual assault survivors’ confidence in the criminal justice system. The goal is to ensure judges hearing sexual assault matters will have the necessary training to fairly and properly decide matters, without the influence of myths and stereotypes. The Bill also proposes to enhance the transparency of decisions by amending the Criminal Code to require that judges provide written reasons, or enter them into the record, when deciding sexual assault matters.

Former Private Member's Bill C-337

This Bill is consistent with former Private Member’s Bill C-337, which did not pass the Senate before the last election. The Bill takes into account the recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs. Private Member’s Bill C-337 and former Bill C-5 both received widespread support from the originating sponsor, stakeholders, and many parliamentarians.

Role of the Canadian Judicial Council

This Bill clarifies that seminars established by the Canadian Judicial Council on matters relating to sexual assault law must be developed after consultation with individuals and groups or organizations it considers appropriate, including sexual assault survivors and organizations supporting them.

The Bill also requires the Canadian Judicial Council to provide to the Minister, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and the number of judges attending. This requirement is intended to enhance accountability in the education of sitting judges on these matters and to act as an incentive to encourage their participation.

Maintaining judicial independence

In order to respect the principle of judicial independence, training for judges must be controlled by the judiciary. The Canadian Judicial Council establishes the professional development requirements for superior court judges. The Council collaborates closely with the National Judicial Institute, which is responsible for the overall coordination of judicial education in Canada, in addition to being a primary education provider. The National Judicial Institute is an internationally recognized, judge-led organization that is independent from government.

Social context education

Social context education is designed to teach awareness and skills for judges to ensure that all people who come into the courtroom are treated respectfully, fairly and equally. Judges must ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. This requires awareness and knowledge of the realities of individuals who appear in court, including an understanding of circumstances related to gender, race, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age, socio-economic background, children and family violence.

Commitment to judicial education

While this Bill is an important legislative step, the Government has also committed significant resources to support the availability of enhanced judicial education in this area.

In Budget 2017, the Government provided the Canadian Judicial Council with $2.7 million over five years, and $0.5 million per year thereafter, to ensure that more judges have access to professional development, with a greater focus on gender and culturally-sensitive training.

Parliament does not have the authority to legislate in relation to provincially- or territorially-appointed judges. However, the federal government can support policy and program measures. The Government is committed to working with its partners to enhance the availability of training.

Proposed amendments to the Criminal Code

Sexual assault decisions

This Bill proposes to amend the Criminal Code to require judges to provide reasons for decisions under Criminal Code sexual assault provisions, including those that are decided under historical sexual assault offences. This requirement is intended to enhance the transparency of judicial decisions made in sexual assault proceedings.

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