Sarah Leamon: Act to amend Judges Act raises thorny questions about Parliament's role vis-à-vis the judiciary

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      A former private member's bill appears to be uniting MPs across party lines, but not everyone is thrilled.

      Bill C-5, which was introduced by Conservative interim leader Rona Ambrose, in February, 2017, has been revived by Liberal Justice Minister David Lametti, who reintroduced it into the House earlier this week. 

      The bill, also known as An Act to amend the Judges Act and the Criminal Code, would bring about two big changes if passed. 

      First, it would ensure that all newly appointment provincial superior court judges would undergo training to learn about the myths and stereotypes associated with sexual assault cases as a condition of their appointment.

      Secondly, it would require the Canadian Judicial Council to report on ongoing efforts to provide this type of training to sitting judges, on an ongoing basis.

      Ambrose has said that these initiatives go above partisan politics. In her view, they ultimately boil down increased support for victims of sexual assault and are necessary to instill a sense of confidence in our justice system.

      While continuing education and increased training are an important aspect of judicial responsibility, this bill has some critics wondering whether it's gone too far…or perhaps not far enough. 

      Some lawyers and legal experts have questioned whether these ongoing requirements have taken on a paternalistic approach. This, they say, may ultimately undermine public confidence in the judiciary rather than increasing it. 

      While there have been unfortunate instances of judges espousing outdated and harmful stereotypes about sexuality and sexual offences (we’re looking at you, former justice Robin Camp) or behaving unethically, these instances are—thankfully—far and few in between. 

      Further, assuming that all judges—whether newly appointed or comfortably on the bench—are so ignorant to sexual assault issues that they require specific training in the area assumes that something is very broken in our judicial system, with respect to sexual assault exclusively.

      It also seeks to treat sexually based offences in criminal law differently than any other legal issue or area. This is a dangerous approach, not just for those accused of such offences, but for the community at large. 

      After all, while this is a troubling issue, there are other things to worry about. For example, the disproportionate incarceration rates for Indigenous people, discrimination against LGBT2Q people, climate change, and the opioid crisis pose problems as well…and that’s just to name a few. 

      The narrow focus of this bill—with sexual assault awareness as the big-ticket issue facing the judiciary—is perhaps the most objectionable aspect of it.    

      By assuming that that sexual assault is the single most daunting issue before our courts and that it is unique, so difficult, and so complex that it requires unique, statutorily mandated treatment, is headlong and obtuse. 

      So, if The Act to amend the Judges Act and the Criminal Code passes, I would expect that another bill should follow shortly thereafter. This one, focusing on judicial education around the historical and contemporary discrimination of visible minorities, and specifically Indigenous people. 

      Given the serious, systematic nature of racism, judges should also be required to take antidiscrimination and racism training. 

      Women and Gender Equality Minister Maryam Monsef, Justice Minister David Lametti, and Liberal MP Arif Virani joined Rona Ambrose earlier this week at a news conference.
      David Lametti

      But why stop there? 

      Members of the LGBT2Q community, and specifically nonbinary and transpeople, face harmful stereotypes and attitudes, fuelled by misunderstanding, miseducation, and prejudice. These stereotypes and attitudes could factor into a judicial decision-making. Judges should be specifically trained on that, too.

      Addictions issues are often misunderstood. Although they can affect all walks of life, they more often impact marginalized individuals. The opioid crisis is claiming more and more lives with each day that it is allowed to drag on. It’s time for judges to be educated about addiction as well. 

      Next up, climate change. With high-stakes legal challenges in the oil and gas industry making headlines on a near daily basis, judges are largely being left to carve out the energy future of our planet. They must therefore be educated about the environment and the science of climate change.

      The list can go on and on.

      Of course, education is important, and educating those in power, like our lawyers and our judges, is imperative. 

      But allowing Parliament to interfere with the judiciary, by singling out one troublesome social issue among many, is just plain wrong.