Filling the wrong gap

When Parliament was prorogued in August 2020 a number of bills died on the order paper. Among them Bill C-5, which would have made judicial appointments contingent on applicants undertaking to take courses on sexual assault law and social context. Bill C-5 was similar to Bill C-337, a private member’s bill that also died on the order paper when the 2019 election was called.

The CBA Criminal Justice Section and the Judicial Issues Subcommittee commented both on C-337 and C-5, and are now offering comments on Bill C-3, An Act to amend the Judges Act and the Criminal Code.

First, the good news: The CBA sees it as an improvement that the bill no longer requires all applicants to take sexual assault law training prior to being appointed, instead requiring persons applying for judicial appointments to undertake to complete the training. However, concerns remain.

One important question is whether an applicant’s appointment will be suspended or reserved until after the training is complete, as well as who exactly is responsible for offering the training and who would bear the cost of taking these courses. “If a person were appointed but then unable to complete the undertaking, would the judge be subject to disciplinary charges? Or other sanctions?”

While it is desirable that Canadian judges be properly trained, the submission raises important questions about the appropriateness of making every judicial appointee go through sexual assault law training, especially where a judge is highly unlikely to hear such a case, such as jurists appointed to the Tax Court. And as the Section and Subcommittee previously noted in comments about earlier bills, the proposed legislation “would not address sexual assault awareness for judges in provincial and territorial courts where most sexual assault cases are heard.”

The CBA is also concerned about maintaining the independence of the judiciary. “It is troubling for Parliament to attempt to make another, co-equal, branch of government subject to a particular type of education that it determines to be necessary,” the submission says, adding that the Canadian Judicial Council and National Judicial Institute already offer training on sexual assault awareness. “These judge led institutions develop criminal law training for federally appointed judges focused on sexual assault trials, including social context education. We urge provincial and territorial judges to get appropriate training.”

Bill C-3, like its predecessors, addresses “a gap that doesn’t exist in the federal judiciary,” the CBA says, without addressing potential problems in provincial and territorial courts where most sexual assault cases are heard.