Mandatory training for judges in sexual assault law sets dangerous precedent, expert says

A bill calling for mandatory training in sexual assault law for Canadian judges would set a dangerous legal precedent, says a legal rights advocate.

"Clearly judicial training is something we should all be talking about at this moment," said Lise Gotell, a professor of women and gender studies at the University of Alberta. "I'm supportive of mandatory judicial education that includes training on how to conduct a sexual assault trial but I don't believe it should be legislated.

'Judges have to be self-governing'

"Judges have to be self-governing. That's essential to judicial independence."

Interim Conservative Leader Rona Ambrose introduced Bill C-337 amid the controversy around former judge Robin Camp.

Camp, who was later promoted to federal court, served as a provincial court judge during a 2014 sexual assault trial, during which he asked the complainant why she "couldn't keep her knees together."

Camp also repeatedly referred to her as "the accused" and stated that "sometimes sex and pain go together."

Camp resigned from his federal position last month after the country's judicial watchdog recommended he be removed for his conduct.

As part of a judicial review which eventually recommended his removal, Camp admitted he had never received judicial education on sexual assault law or how to conduct sexual assault trials.

Ambrose has said her legislation would be a "simple fix" in addressing a worrying gap in knowledge of sexual assault law in Canadian courts.

However well-intentioned the legislation, the federal government does not have the jurisdiction to mandate training, said Gotell.

"Judges need to be able to make decisions, unpopular decisions, without fear of political interference," Gotell said in an interview with CBC Radio's Edmonton AM.

"Judicial independence is a foundational  principle of the rule of law, and the rule of law is an underpinning of democracy.

"We have to be careful about politicians legislating the behaviour of judges."

The bill would require that all new applicants for judicial appointments by the federal government have comprehensive training on sexual assault law before taking the bench.

Secondly, the criminal code would be changed, making written judgments mandatory in all sexual assault cases.

The bill would also require the Canadian Judicial Council to report on continuing education courses in matters related to sexual assault law.

The status of women committee also released a report last month recommending all judges and RCMP officers should have to go through mandatory training on gender-based violence and sexual assault.

The 2017 budget proposes $2.7 million over five years, plus $500,000 annually afterwards, for the Canadian Judicial Council to support training on ethics and conduct for federally appointed judges, while also ensuring access to professional development that is gender and culturally sensitive.

Though Gotell acknowledged the need for improved judicial training on issues such as consent and "rape mythology," she said the changes need to come from within the courts, not the House of Commons.

"It's actually a fairly simple fix," she said. "The chief judges of the provincial courts and the Canadian Judicial Council …. need to come to the conclusion that judges require mandatory judicial education that includes education on sexual assault law.

"But they need to come to that conclusion themselves. The government cannot legislate that."