Criminal Law

Sex assault training bill threatens judiciary independence

By Paul Russell, AdvocateDaily.com Contributor

It’s a good thing that a bill requiring federal judges to undergo training on sexual assault died on the order table this summer, as it may have compromised the independence of the judiciary if it was passed, says Toronto criminal lawyer John Rosen.

“Such a mandate from Parliament would be seen as sending a signal that judges ought to follow government policy in deciding these cases,” says Rosen, founder of Rosen & Company Barristers.

“That would constitute an unwarranted infringement by the executive branch of the government on the judicial independence that is integral and necessary to the fairness of Canada’s judicial system.

“It’s one thing for the judges to educate themselves about changes in the law while maintaining an independent and unbiased position. It’s another thing for the executive branch to tell the judiciary how to act in a courtroom,” he says.

“That is what made this bill so offensive, and I hope it won’t be resurrected,” Rosen tells AdvocateDaily.com.

Former interim Conservative leader Rona Ambrose introduced the bill in 2017, with it passing unanimously in the House three months later, according to Global News.

Its progress in the Senate was slow, the story states, with Ambrose blaming a “group of old boys” in the Upper House for setting up roadblocks to its passage, even though she agreed to amendments meant to “address concerns that the proposed law could undermine judicial independence and create the perception of judicial bias.”

These amendments would have dropped the bill’s requirement that applicants for judicial posts undergo training in sexual assault law, and instead would be required to commit to undergo continuing education in sexual assault law, according to the story.

Rosen says there was no need for the training to be mandated.

“Judges already receive education on many issues, including those surrounding sexual assault, on an ongoing basis and in a variety of different ways,” he says. “I was surprised when I saw the legislation, as I wondered what the motivation behind it was, as judges already know what to do.”

Rosen questions whether mandating education on such matters infringes on judicial freedom.

“Doesn’t that upset the balance in the courtroom?” he says. “When the government tries to mandate sexual assault education, there is a possibility that will affect the independence of the judiciary, or at least put pressure on judges to convict more than acquit.”

To illustrate the apparent need for this training, the Global New story referenced one federal court judge who asked a sexual assault complainant why she hadn’t kept her knees together to avoid being raped.

Rosen says government legislation should not be built around “rare” cases, but should instead take a broader view.

“Our current government seems intent on implementing changes to the criminal law and procedure to address anomalies in individual cases that attract headlines,” he says.

“This is only one example where, fortunately, the damage has been avoided with the death of the legislation,” Rosen says.

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