Sexual Assault Training for Canadian Judges: Holding Their Feet to the Fire

Gary Clement, National Post

Rona Ambrose’s Private Members Bill – Judicial Accountability Through Sexual Assault Law Training Act – brilliantly abbreviated as the JUST Act – got one step closer to becoming law when the House of Commons passed it unanimously on May 15^th and sent it back to the Senate.

The drive behind the Bill comes from the outrage and disgust following  followed the comments of Robin Camp in a sexual assault trial in 2014 and the long, tortuous and at times amazing debate (we have to think this long and argue this much about whether to remove a public judicial officer who tells a victim she should have kept her legs together and saved everyone the trouble?) that eventually culminated in Robin Camp’s removal from the Bench earlier this year.

Before getting into this let me be clear: of course there are judges out there who oversee sex assault trials with informed compassion and sensitivity. The problem is that there are others who do not. And that is a big problem, not only for victims but for Canadian society at large if we are committed to values of fairness and informed decision-making.

What the Bill says

Deeply affected by her time as a student volunteer at the Victoria Sexual Assault and Sexual Abuse Crisis Centre, and the Edmonton Women’s Shelter, Ambrose has proposed legislation to require federal judges to take training on sexual assault law and related issues (topics that have been suggested include understanding the dynamics of sexual violence and the effects of trauma on behavior and memory).

The Bill will also require the Canadian Judicial Council to submit an annual report detailing which judges have undergone training, as well as who has not (and whether these judges nevertheless try such cases). There are also indications that Ontario Attorney-General Yasir Naqvi will ask the Ontario Court of Justice to make sexual assault training a requirement for Ontario judges.

I strongly support this development, as I believe anyone who wants an improved criminal justice system headed by informed judges would. However, there are a number of interesting aspects to both the strategy and the ensuing debate (which is not over yet) that invite further comment and analysis in this blog.

Making them do it

First, it is noteworthy that it is considered necessary to legislate that judges receive sexual assault training.

This suggests that simply reaching an understanding with the institutions responsible for overseeing and delivering judicial training in Canada – respectively the Canadian Judicial Council (CJC) and the National Judicial Institute (NJI) – was not considered to be an effective or stable solution.

In their response to the Bill, the CJC and the NJI perhaps unintentionally reinforced a legislative strategy. Their response: this is a great idea, but hey we do it already, honestly.

But I am sorry, they do not.

First there is no mandatory training for judges (as opposed to lawyers, who must complete a number of credits of continuing legal education each year). However, the CJC now seems to be seriously considering this in light of the pressure around sexual assault training.

Second, the NJI has for many years offered “social context” workshops to judges. These programs began when I was working regularly with the NJI as both a researcher and a trainer, and I knew some of the impressive individuals who worked on the program’s design (which has continued to evolve).

But to suggest that the social context program is adequate for training judges in the dynamics of sexual violence and the effects of trauma on victims, and thus constitutes the “comprehensive education” the Bill envisages, is risible. The authors of the social context programming have valiantly squeezed a wide range of important topics – including race, intercultural competence, indigenous law and legal rights, and sensitivity to gender (not the same as understanding the dynamics and effects of sexual violence, but a start) – into these programs. Social context training for judges is often offered on a court-by-court basis, rightly reflecting local issues and challenges – the NJI programming aims to equip judges to take back and deliver training to their peers (more on this below).

Sheila Malcolmson, MP, made the following comment after hearing from Norman Sabourin of the CJC and Adele Kent of the NJI:

“The evidence we heard at committee this morning is that the judicial training is really great right now and that it is going to be a lot better in the next few months, which is awkward, honestly, because if it were really being done well, we would not have these calamitous headlines about how some victims and survivors of sexual assault have been treated.”

Precisely. (Voluntary) social context training for judges is important and it may be a good foundation on which to build, but it is not mandatory sexual assault training.

Conflating judicial ignorance with judicial independence

The CJC has played the “judicial independence card” a few times here, in sort-of accepting and sort-of protesting the provisions of the Bill.

There is no doubt that playing the judicial independence card is an extremely powerful move.

It’s a little like finding out that your planned home renovation “may” be compromised by “structural issues”.

It’s hard to respond to because:

• It sounds really important.
• It is a reference to the very foundation (literally and figuratively) of the system.
• No one knows what it really means (“active adjudication” before Pintea was also seen as a breach of judicial independence).

Here references to judicial independence seem to conflate “judicial independence” with “judicial ignorance”.

In most professions, adequate working knowledge is assumed to be necessary before one is allowed to make judgments and craft outcomes.

Why are judges different? Why would understanding more about the scientific evidence for rape trauma, for example, make a judge any less “independent”?

In an adversarial frame, seeing advocates for survivors as “biased”

Adele Kent, executive director of the NJI, frankly acknowledged in discussing the Bill with the Status of Women Committee that more needs to be done in delivering sexual assault training to judges. But in raising the question of who delivers this training, she perhaps unwittingly revealed a systemic problem with many aspects of judicial education at the NJI.

“Some of those groups …are advocates, and we can’t have advocates teaching our judges. We need the balance …”.

Justice Kent’s statement suggests that evidence of the cognitive and emotional impact of trauma is an “argument” that needs to be “balanced” by the opposing view (in an adversarial frame) – would this be that after sexual assault everyone feels just fine?

As I know from decades of working with this fine organization the NJI’s proud mantra is “judges teaching judges”. In many ways this makes sense. Rightly or wrongly, judges usually heed one another before considering other experts’ opinions.

But this mantra has problems.

• Judges may not be sufficiently informed on the topics that judges need to learn about (e.g. the impact of trauma on cognitive processing).
• Many of the pressing issues that require judicial education – including understanding self-represented litigants – need to be introduced from the perspective of someone other than a judge (unless they also happen to be a clinical psychologist, or representing themselves in court, or willing to talk about their own experience of sexual assault).
• Judges are not necessarily effective teachers (it’s a learned skill, not just something you wake up in the morning and do well).
• To the public, the assertion that “judges should teach judges” sounds pretty scary just now after a string of reported incidents in which judges appear uninformed and insensitive in their handling of sex assault trials.

Conflating knowledge and experience with “special interests”

More pointed was a CJC statement on May 12, saying that the Bill risked “…opening the door for special interest groups dictating the kinds of education judges should adopt.”

The reference to “special interest groups” here is a dog-whistle for “militant womens’ groups with an axe to grind”. It reveals just how defensive the CJC feels at the moment.

We should not be swayed by arguments (by either the CJC or the NJI) that training by “experts” and “advocates” is not possible because of the risk that this individual might appear before one of those judges in future (which would of course compromise judicial independence). Simple administrative systems and presenter consents would take care of this.

The same objection has been raised each time NSRLP has suggested that judges might want to listen directly to the lived experiences of SRLs in their seminars. It’s just an excuse not to involve people with direct experience and knowledge.

Lived experience

I want to conclude with the words of Lise Martin, Executive Director of Womens’ Shelters Canada, who asked the Committee (among other things) for:

“(T)raining that is shaped by the perspective of survivors, as they are indeed the true experts”.

The Canadian justice system will be truly listening to the public when it engages with their lived experiences – as self-represented litigants, or as the survivors of sexual assault and rape (as I am) – as part of judicial training.