Changing the culture in sexual assault trials

By Kim Covert April 24, 201724 April 2017

Changing the culture in sexual assault trials


In the wake of the outrage that followed comments by some judges in sexual assault trials, including former judge Robin Camp’s suggestion that a victim should have “kept her knees together,” there have been many calls for better education of judges with regard to sexual assault – particularly, in the way they deal with victims of assault.

Interim Conservative leader Rona Ambrose weighed in with a private member’s bill, the Judicial Accountability through Sexual Assault Law Training Act, which easily passed first and second reading and is now in committee.

The CBA’s National Criminal Justice Section agrees with the intention of the bill, but says in its submission that legal requirements for some of the proposed legislation’s key clauses already exist.

“Bill C-337 is laudable in attempting to ensure that only qualified judges hear sexual assault cases and those judges offer well-considered reasons for all decisions in sexual assault cases,” the submission says. “The CBA Section is committed to both ensuring that Canada’s judiciary is of the highest calibre and that justice is administered in a fair, efficient, impartial and constitutionally sound manner. All these considerations are necessary for Canadians to be confident in how the justice system functions and assured of its integrity.”

That said, the proposed legislation’s requirement that judges give written reasons for their decisions in sexual assault cases echoes requirements in the existing law for judges to give proper reasons, whether written or oral.  It is incorrect to consider oral reasons as deficient or “less than” written, the Section says. Furthermore, however they’re delivered, reasons must “allow meaningful appellate review of a conviction or acquittal” and “must be responsive to issues raised at trial.” The 10-point guidelines for preparing reasons laid out by the Supreme Court in R v Sheppard also underscore the duty already imposed on judges, the submission says.

It also notes that as written reasons take longer to craft than oral, requiring judges to produce them “could add to court delays at a time when delays in the justice system … can mean charges will be stayed.”

Another area the Section commented on is the duty the proposed legislation would impose on applicants for federal judicial appointments to undergo training on sexual assault issues to the satisfaction of the Commissioner for Federal Judicial Affairs. “It is unclear who would bear the cost for that training,” the Section notes, or in fact who would adduce the prospective judges satisfactorily trained.

The submission notes that there are already educational programs for judges in place across the country, and that the recent federal budget included plans for increased funding for gender and cultural sensitivity training.

“Any amount of rigor in training procedures will not preclude the possibility of occasional inappropriate behaviour, reactions or remarks,” the Section notes. Neither would the training for which it calls have precluded incidents like the one in Camp’s court, since the bulk of sexual assault trials are held in provincial, not federal, courts.

Finally, the Section says, any legislation has to tread warily around the question of judicial independence and integrity, and clearly not interfere with it.

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