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Judicial council offers courses for judges on handling sex assault cases

Canadian Press THE CANADIAN PRESS

OTTAWA — The Canadian Judicial Council has launched a new website showcasing the training courses it is offering to federally appointed judges — including seminars to help judges handle sexual assault cases.

In a statement on the site, council chair Richard Wagner, who is also the Supreme Court's chief justice, says so-called social context education gives judges the skills necessary to ensure "myths'' and "stereotypes'' do not influence judicial decisions.

The website, at judicialeducation.cjc-ccm.ca, includes 10 offerings focused on sexual assault law, as well as one on sexual assault trials.

The latter course includes video-based programs that provide judges with an overview of the sort of issues they're liable to face.

In one session, experienced jurists discuss "rape myths'' and "stereotypes,'' and how such myths can propagate "rapidly'' during various stages of the judicial process.

Johanna Laporte, the director of communications for the council, said Canada has "extensive'' training for judges on a range of issues and the website is intended to inform Canadians of how judges keep up to date with the law and social context.

"While the recent public debate about sexual assault training for judges has cast a light on the need for added transparency, Council's main impetus was to showcase the breadth and depth of judicial education programming,'' said Laporte.

"Many courses have elements of social context awareness and sexual assault law woven into them and Council hopes that visitors will see that these complex issues are discussed in a variety of settings — not just in a stand-alone course,” he said.

The federal Liberal government has thrown its support behind a bill, currently before the Senate, that would require judges to take courses in sexual assault law.

Bill C-337 would also limit judicial appointments to those who have completed comprehensive education in sexual assault law and social context.

It would also require the council to report on continuing education seminars in matters related to sexual assault law and change the Criminal Code to require courts to provide written reasons in sexual assault decisions.

In an interview with AdvocateDaily.com, Toronto civil sexual abuse lawyer Anna Matas says she welcomes mandatory training for judges.

“While there are many excellent judges who already understand the law of sexual assault and the context in which this crime often takes place, survivors of sexual assault should be entitled to expect all judges to enter the courtroom with the same level of understanding,” says Matas, a lawyer based in the Toronto office of Lerners LLP

“Bill C-337 seeks to ensure that all judges will be equipped with the same tools to address this specialized area of law,” she says.

Matas points out that sexual assault is most often committed by a person who knows the victim.

“Frequently, there’s a power imbalance of some kind, which the perpetrator uses to his or her advantage,” she says. “It could be the power differential between a priest and congregant or coach and athlete. In the context of domestic sexual assault, the power imbalance may be related to control over finances or access to the children.”

 Matas says opponents of judicial education often equate a better understanding of complainants with increased convictions of the accused.

“There is no foundation for these suggestions,” says Matas.

“A judge’s role remains the same — to assess the credibility of the complainant and any other witnesses, and to reach a determination based on the stringent beyond-a-reasonable-doubt standard. Understanding contextual factors — like any potential power imbalance, the impact of trauma on memory, or the limits of an individual’s capacity to consent — can only help judges make better decisions.”

The question of how well-equipped judges in Canada are to handle sexual assault cases has been a hot topic in recent years.

In 2017, a Nova Scotia judge acquitted a Halifax cab driver at trial, suggesting that even an intoxicated woman can consent to sex.

During a trial in 2014, Alberta judge Robin Camp — referring to the complainant as “the accused'' — asked why she hadn't resisted the alleged assault by keeping her “knees together.'' Camp stepped down after the council recommended that he be removed from the bench. He was reinstated as a lawyer in May by the Law Society of Alberta.

And, there was the 2017 case in Quebec where Judge Jean-Paul Braun suggested the survivor of a sexual assault by a taxi driver might be “flattered” by the sexual assault because she was “a little overweight.”

Matas says the judge’s comments illustrate “a fundamental lack of respect for the complainant as a person and propagates unacceptable stereotypes about women, consent and individual autonomy.”

She is hopeful that “judicial education on this topic should assist in reducing the number of damaging interactions a complainant may have in court — which can occur even when the accused is convicted.”

Bill C-337 was introduced in 2017 by former Conservative interim leader Rona Ambrose after Nova Scotia provincial court judge acquitted a man of sexual assault, even though police found the partially naked complainant unconscious in the back of the man's cab shortly after the alleged incident.

The ruling — along with the judge's comment in his decision that "clearly, a drunk can consent'' to sex — prompted widespread protest. Earlier this year, Nova Scotia's top court ordered a new trial in the case.

– With files from AdvocateDaily.com

© 2017 The Canadian Press

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