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Restoring public faith in the courts around sexual assault: judicial education is not enough

On Behalf of | Mar 21, 2017 | Uncategorized

For those with even a passing interest in the news or the criminal justice system, it would seem that the Canadian courts are now overrun with problematic sexual assault cases and judges. We recently saw Robin Camp resign as a federal court judge, after infamously asking why a complainant failed to ‘keep her knees’ together. A case in Halifax has the public outraged as a judge asserted that even drunks can consent. As public confidence in our court system seems to be shaken, the federal government has cast its gaze on judicial education as a response.

Rona Ambrose recently introduced bill C-377, which requires mandatory education of judges in the law of sexual assault, and parliament has since agreed to fast-track to committee. While it is difficult to criticize the prospect of more education, particularly for judges who may not have a background in criminal law, it seems to me that this is not necessarily addressing the issues. Among other statements, the bill’s preamble recognizes that sexual assault complainants are re-victimizes by the court process and that ‘problematic interpretations of the law may arise in sexual assault trials.’

Canada maintains some of the more robust sexual assault laws in the world, designed to protect complainants’ privacy and guard against rape myths and stereotypes. Still, these laws must obviously be properly applied in order to be effective. But is judicial education the key to their proper application?

In my view, while judicial education is important, it’s not the real solution here. There are a number of things that could well help to ensure fair decisions and to restore some measure of faith in the criminal justice system. Let’s be clear that the provincial and federal Attorney General are not exactly banging down defence lawyers’ doors to get out input on criminal justice reform, as we’ve seen with the delays in the courts and the fall-out from the R. v. Jordan decision, but I’ll put them out there anyways.

With respect to complainants being supported throughout the legal process, the answer seems obvious: fund Legal Aid certificates for independent legal advice for complainants, as was started in an Ontario pilot project in 2016. I spend hours with my clients preparing them for trial, particularly if they are testifying, so that they know what to expect and are properly prepared. Meanwhile, complainants often do not have the chance to meet with the Crown before a case. Another option then is to better resource Crown’s offices so that a complainant has adequate time to review previous statements and become more familiar with the trial process. Obviously this does not affect remarks made by a judge, but it may allow complainants to feel more comfortable and in control of the process if they have a better idea of what to expect.

With respect to the ‘problematic interpretations of the law,’ surely it is the role of appellate courts to review cases where there is an error of law. So, perhaps the respective Attorneys General could focus on appeals of sexual assault cases whenever the trial Crowns feel there may be issues. A comprehensive review of trial decisions may well provide for additional accountability from the bench, and having a decision appealed would send home a much stronger message to a judge than a seminar on sexual assault law might.

The difficulty with these suggestions is that they take time, money and effort. Investing in judicial education is quicker, cheaper and likely an easier political sell. But there’s no telling what effect it would actually have. In working towards building public faith in the criminal justice system, particularly with respect to sexual assault, judicial education cannot be discounted. Still, it cannot be seen a wholesale solution.

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