OTTAWA — The Canadian Judicial Council is worried that judicial independence will be compromised if the federal government passes a law requiring new judges to commit to taking training in sexual assault law.
J. Michael MacDonald, the interim executive director of the council, urged the government Tuesday to make what he called "minor" amendments to Bill C-5 to make it clear that it's entirely up to the judiciary to decide what kind of education and training judges should have.
The council, which provides judges with education programs, sets ethical principles and hears complaints about judicial conduct, supports the goal of the bill to ensure judges treat victims of sexual assault fairly and sensitively, he said. But it feels the bill goes too far in directing the judiciary about how judges should be trained.
If the judiciary does not stand up now and resist being told how judges should be educated, MacDonald said it would set a precedent that would make it harder to stop more controversial, politically driven directives from governments in future.
"The concern is that in 20 years from now, if the government of the day were to direct judges to learn about the myth of residential schools ... you would want the judiciary to stand bravely, courageously and say, 'You can't tell us what we have to learn. If you tell us what we have to learn, you tell us what we have to think, arguably,'" he told the House of Commons justice committee, which is studying the bill.
"That's the concern and we want to be able to tell that government, 'You can't do that' and we would not want the answer to be, 'Well, actually, that was done in 2020.'"
MacDonald, a former chief justice of Nova Scotia, proposed that the wording of the bill be "tempered," replacing verbs like "must" and "shall" to "should" when it comes to the kind of training offered and taken by judges.
MacDonald said the council is also concerned that the bill would apply only to federally appointed judges, not to those appointed to provincial and territorial courts, which handle the vast majority of sexual assault cases.
Justice Adele Kent, chief judicial officer of the National Judicial Institute, which develops and offers education programs for judges, backed up MacDonald by describing the kinds of programs that are already offered to judges. They include required courses for first-year judges in criminal law, which includes sexual assault. And between their second and fifth year on the bench, she said judges are required to take a five-day course on how to manage a criminal trial, in which the hypothetical examples used are sexual assault cases since they are so complex and sensitive.
"Let me respectfully say, in my humble opinion, we are on top of this," MacDonald said.
Justice Minister David Lametti, who appeared at the committee immediately after MacDonald and Kent, said he would carefully consider the council's proposed amendments, which he had not yet seen. But he said he believes the bill respects judicial independence.
"I don't think we've crossed the line on judicial independence," he said after the committee meeting.
"This doesn't in any way have an impact on the decisions that they actually make as judges and I think the counterbalancing point is we're trying to get at better, more fair, more sensitive processes particularly with respect to sexual assault."
Bill C-5 revives a private member's bill introduced several years ago by former interim Conservative leader Rona Ambrose, which stalled in the Senate and died when Parliament dissolved for last fall's election.
Her bill was sparked by some high-profile rulings that outraged many Canadians: Alberta judge Robin Camp asked a sexual assault complainant in 2014 why she couldn't keep her knees together; Halifax judge Gregory Lenehan said "a drunk can consent" while acquitting a taxi driver of sexual assault on a passenger in 2017.
Bill C-5 would require new judges to take training, including learning about rape myths and stereotypes and how to make sure biases about race, gender and other social factors do not influence their decisions. It would also require judges to put their reasons on the record when ruling on sexual-assault cases.
It incorporates modifications proposed by senators in a bid to allay concerns that mandatory training for judges would impinge on judicial independence. For instance, it leaves it to the judicial council to develop the actual training program, in consultation with whomever it chooses, including, potentially, survivors of sexual assault.
However, Supreme Court Chief Justice Richard Wagner, who chairs the judicial council, hinted last month at the council's continuing objections to the bill. He used a speech to the Canadian Bar Association to stress that the judiciary "has to be free to decide what training and education judges receive to do their jobs well."
This report by The Canadian Press was first published March 10, 2020.