Judges aren’t the only ones who need sexual assault awareness training

Sept 28, 2020

Judges aren’t the only ones who need sexual assault awareness training

The earlier sexual assault awareness and healthy relationship training can start, the better, says Toronto civil litigator Stephany Mandin. 

Legislators in each of the last two sessions of Parliament in Ottawa have launched efforts to mandate training for federally-appointed judges about common myths and stereotypes surrounding sexual assault cases before they can hear matters.

The initiatives met resistance from the Law Society of British Columbia, which recently suggested in a statement to members that they could threaten judicial independence, but Mandin, principal of Mandin Law, says there is a way to sidestep such concerns:

“If we hope to make a real difference, we have to start thinking about educating people more broadly and much earlier,” Mandin, says. “Education about sexual harassment, the fluidity of consent and healthy sexual relationships is something that should be trickling down well before someone is appointed a judge.”

“It should be part of the general curriculum in high school as well as the legal curriculum, so that we’re raising children to become more cognizant of these issues. By the time they’re eligible to become judges, this sort of knowledge should already be entrenched,” she adds.  

Bill C-377 – introduced back in February 2017 by former MP Rona Ambrose before her retirement from politics – kickstarted the call for a fresh branch of judicial training, suggesting a syllabus to cover rape myths, stereotypes and gender bias in decision-making.

The bill followed in the wake of several high-profile rulings in sexual assault matters, including the case of Justice Robin Camp, who eventually resigned amid the outrage engendered by his questioning of a sexual assault complainant in 2014 why she hadn’t kept her “knees together” during the incident.

Ambrose’s private member’s bill sailed through the House of Commons, but stalled in the Senate before dying on the order paper when Parliament dissolved for the general election in late 2019.

“Since the bill was first introduced, the growth of the #metoo movement has only intensified the spotlight on these issues and the concern that judicial decisions have entrenched myths and stereotypes around what victims look like and how they are supposed to act,” Mandin says.

The Liberal minority government picked up the baton earlier this year by sponsoring similar proposals in Bill C-5, but it met the same fate as C-377, disappearing when Prime Minister Justin Trudeau directed the prorogation of Parliament in August.

The LSBC’s objections related to the “directive nature” of Trudeau’s December 2019 mandate later to his Minister of Justice David Lametti.

“The prime minister’s mandate letter expects his minister of justice to take steps to develop proposals through which to discipline Canada’s judges and to ensure Canada’s judges are educated on certain specific matters,” the law society statement reads. “This casts a chill over judicial independence by creating the spectre of executive direction in judicial discipline, and the prospect of executive interference in the education of the judiciary.”

Amendments in C-5 were already designed to address judicial independence concerns previously raised by members of the Senate. For example, the bill would have left it to the Canadian Judicial Council to develop a suitable program after consulting with its own experts and interested parties.  

While the training envisioned by the law would only have been mandatory for newly appointed judges, C-5 would also have required the CJC to report on its progress educating sitting judges in a similar way.

“I don’t think the bill would have had much trouble passing constitutional muster,” Mandin says.

Mandin says both C-377 and C-5 had shortcomings, noting neither would have applied to provincially-appointed judges – who hear the vast majority of sexual assault cases.

In addition, she frequently assists sexual assault victims pursuing claims in civil court or initiating actions at human rights tribunals, whose decision-makers were untouched by either version.  

Beyond that, Mandin says there is plenty of work still to do for the legal profession and society at large to improve its attitude towards sexual assault victims.

“For every 100 cases of sexual assault, only a handful are ever reported. The criminal justice process can be very traumatic, and not just when you get to court; I’ve had clients who were dissuaded from reporting by the police. If you want to litigate a claim in civil court, it’s very expensive and many settle before they ever get to trial,” she says. “These bills didn’t address any of those issues, but I think it serves our profession well to be well versed in them.”