NAWL recommends that the committee amend the preamble to acknowledge explicitly that sexual assault is gender based, that the majority of offenders are men, and that the vast majority of victims/survivors are women and girls. The preamble should acknowledge that women have diverse lived experiences of sexual assault and of the criminal justice system response to allegations of sexual assault. The preamble should specify that lack of faith in the criminal justice system, the potential of sexual assault proceedings to harm survivors, and problematic interpretations of law in sexual assault proceedings are inconsistent with substantive equality for women.

NAWL recommends:

Whereas in Canada everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect;

Whereas in Canada, women are more likely than men to be victims of sexual assault;

Whereas women’s multiple, overlapping and intersecting experiences of discrimination, including discrimination based on race, Indigenous identity, religion, ethnicity, sexual orientation, citizenship, gender identity or expression, social condition, age and/or disability, put them at greater risk of victimization by sexual assault;

Whereas sexual assault and the criminal justice system response to sexual assault are experienced by women in multiple ways shaped by gender and other forms of discrimination and disadvantage;

Whereas allegations of sexual assault should be tried in proceedings which fully protect the security of the person and equality rights of women, in addition to the fair trial rights of accused persons;

Whereas survivors of sexual assault in Canada must have faith in the criminal justice system, and women’s lack of faith in the criminal justice system reflects the existence of gender-based discrimination rooted in systemic inequalities between women and men;

Whereas the discriminatory and profoundly damaging historic and ongoing impacts of colonization on Indigenous women continue to inform their experiences of, and lack of faith in the criminal justice system;

Whereas interpretations of the law and social context of sexual assault occur in sexual assault proceedings, and these interpretations are often discriminatory;

Whereas sexual assault proceedings have the potential to inflict unique and harmful costs on survivors which contribute to women’s unwillingness to report sexual assault and thereby deny women the equal protection of the law.

NAWL submits that the attention given to continuing judicial education reflects an evolving understanding of judicial independence (and accountability) in an increasingly diverse society legally and constitutionally committed to equality.

Judicial independence is a foundational constitutional principle essential to the delivery of impartial justice. Every Canadian is constitutionally entitled to impartial justice, and judicial independence is a “means” to that “end”.⁴Canadian Judicial Council, Ethical Principles for Judges at 7 “Judicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians. Independence of the judiciary refers to the necessary individual and collective or institutional independence required for impartial decisions and decision making.” See also, R. v. Lippé, [1991] 2 S.C.R. 114, per Lamer J.: “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality. Every judge, like every person, has a particular and inevitably partial, perspective. When appointed to the bench, judges bring perspectives that reflect, among other things, their background, education, and professional experience. Judicial education intended to fill knowledge gaps in the appointee’s professional background (such as for example, a lack of familiarity with criminal law) is an uncontroversial example of continuing professional development for judges. The recent decision of the CJC to make attendance at the new judges’ program mandatory reflects the fact that all new appointees will share similar knowledge gaps relative to the challenge inherent in becoming a decision-maker, and that the judiciary has an obligation to minimize those gaps quickly and effectively.

More complex, but no less significant, is the effect of incomplete knowledge on the obligation of impartiality. NAWL submits that a judge committed to delivering impartial justice has a professional obligation to learn about the perspectives and experiences of others, and in particular, to learn about the ways in which law can have differential and sometimes discriminatory impacts on vulnerable individuals and communities. Judges, as a group, represent the most powerful and privileged members of Canadian society, and the bench itself, despite recent attempts to increase diversity, remains largely unrepresentative. This means that education intended to educate judges about perspective, difference, and diversity will tend to focus on the experiences of the vulnerable and the disadvantaged, since these are the perspectives that judges are least likely to have experienced. Participation in judicial education intended to protect impartiality is entirely consistent with judicial independence. Participation in ongoing judicial education serves the professional and institutional interests of judges as competent and impartial decision-makers, while at the same time responding to the overarching public interest in the delivery of impartial and inclusive justice, and women’s substantive equality rights.

NAWL recommends that the preamble to Bill C-5 be amended to also include the following:

Whereas Parliament recognizes the importance of an independent judiciary;

Whereas Parliament understands that judicial independence is a means of ensuring judicial
impartiality;

Whereas Parliament recognizes that effective judicial education is part of judicial professional development and contributes to public confidence in the administration of justice;

And whereas Parliament recognizes that public confidence in the administration of justice and women’s equality rights will be enhanced by ensuring that persons seeking to be appointed to the judiciary undertake to participate in continuing judicial education related to sexual assault law and social context.

Bill C-5 uses the language of “matters related to sexual assault law and social context” in two places (paragraph 3(b) and 60(2)(b)). The development and delivery of judicial social context education has a twenty-five-year history in Canada. “Social context” is a compendious phrase intended to capture the background factors that may inform judicial decision-making in all contexts in which judicial education occurs. The language in the amendment is not clear.

NAWL recommends the legislation be amended to reflect current best practices in judicial education. Comprehensive and in-depth judicial education on a particular topic requires attention to three elements – the substantive law, the social context of the law, and the relevant judicial skills. Precise language will make both the applicant’s undertaking and the CJC’s power clear. In addition, clearer language here will make section 60(3)(b) superfluous.

NAWL recommends the following amendments to C-5:

3(b) undertakes to participate in continuing education on matters related to:

• the law of sexual assault;
• the social context of sexual assault and the criminal justice response to it; and
• the judicial skills required to impartially preside over sexual assault trials.

including by attending seminars established under paragraph 60(2)(b).

60 (1) The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts.

Powers of the Council

(2) In furtherance of its objects, the Council may …

(b) establish seminars for the continuing education of judges, including seminars on matters related to the law of sexual assault, the social context of women’s experiences of sexual assault and the criminal justice response to it, and the judicial skills required to impartially preside over sexual assault trials.

 

The original Bill C-337 did not include a commitment to consultation. The committee amended the legislation to include it. Many of the witnesses working directly with survivors indicated an interest in and willingness to assist with program development. These witnesses emphasized the importance of in-person consultation, during which judges learned about the social context of sexual assault from those working towards women’s equality on the ground, rather than through an intermediary.

NAWL strongly supports section 60(3)(a). Community involvement was a foundational principle of the Social Context Education Project at the NJI in the late 1990s. The CJC required that social context programming be credible. Judicial educators understood that credibility had two aspects. First, Judges needed to experience the education as credible, relevant and helpful with the work they did; and second, community stakeholders with relevant information needed to be sure that the education credibly reflected their experiences with law, the judiciary and the administration of justice. This meant that community stakeholders needed to speak for themselves.

The stakes in the adjudication of sexual assault cases could not be higher. Women’s equality, personal safety, security, and their confidence in the fairness of the system are at great risk. Unfortunately, judges trying sexual assault cases may hold unexamined and unacknowledged prejudices.⁵A recent and thorough collection of research materials on sexual assault can be found at the Institute for Research on Policy Options. More succinctly, judges may not know what they don’t know.⁶Canadian Judicial Council, In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp, Report and Recommendations of the Inquiry Committee to the Canadian Judicial Council (Ottawa, Canadian Judicial Council, 29 November 2016). The participation of women-serving groups and organizations, as well as sexual assault survivors, particularly women who are victims/survivors and experience intersecting and multiple forms of discrimination, is particularly valuable in this context. Other judges, lawyers, professionals and academics, essential to the development of much content of a comprehensive program, are unlikely to be able to educate others about the actual lived reality of sexual violence, including the intersecting and complex experiences of inequality and discrimination that many survivors of sexual assault suffer. Survivors of sexual assault and those who work with them to provide support and to ensure the protection of their equality rights, have the expertise, knowledge and experience to provide that context. Participating in the training of judges could also be healing for sexual assault survivors.

NAWL recommends:

Seminars related to sexual assault law

(3) The Council shall ensure that seminars on matters related to sexual assault law established under paragraph (2)(b)

(a) are developed after consultation with persons, groups or organizations, particularly with women who have relevant first-hand information related to the social context of sexual assault, and the criminal justice response to sexual assault, such as sexual assault survivors and groups and organizations that support them, that the Council considers appropriate

(b) include instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants.

 

Sexual assault and violence against women are systemic challenges that confront decision-makers in a wide range of contexts outside of the criminal justice system. Women need to trust institutional decision-makers wherever they exercise power. It would be naïve to believe that myths and stereotypes inconsistent with women’s equality are only found in the criminal justice system. They are systemic. NAWL recommends that the federal government pursue amendments to other laws to ensure that all federal tribunals (including, for example, the IRB) required to make determinations related to sexual assault and other forms of violence against women receive mandatory education and training similar to that included in C-5. In addition, NAWL recommends that the government mandate family violence training for all family court judges. Bill C-5, amended as NAWL suggests, provides a blueprint for the development of education which is consistent with judicial independence, that is developed in consultation with front-line stakeholders, and which addresses the law, the social context of the law, and the necessary judicial skills for presiding in a manner which ensures impartial justice.