Should federal judges be required to go back to school? That’s what is being considered in a draft law currently before Parliament. Although it seems like a good idea, the proposed Bill may go too far and might well breach judicial independence.

Tabled by interim Conservative Leader Rona Ambrose in February, Bill C-337 is named the Judicial Accountability through Sexual Assault Law Training Act, referred to simply as the “JUST Act” by the Conservatives. If passed, Bill C-337 would require judges who hear sexual assault matters to take mandatory legal education.

The matter is being fast-tracked through the legislative process. On March 8, on a motion from New Democratic Leader Thomas Mulcair, all parties unanimously agreed to send Bill C-337 directly to the Status of Women Committee, which began considering it on April 5.

This legislative proposal arises from a growing perception that Canada’s legal system deals ineffectively with sexual assaults. For example, a widely reported Globe and Mail investigation recently described “deep flaws at every step of the process”; it said police frequently dismiss sexual assault claims as “unfounded.” The perception of systemic failure in criminal sexual assault matters has focused attention on the specific roles of others, like judges, who have contributed to the problem.

Most recently, a complaint proceeding against Justice Robin Camp received nationwide coverage, raising questions about how Canadian judges are trained and governed. The public hearing in September 2016 revealed Camp’s inadequate understanding of the criminal law of sexual assault and some inappropriate attitudes about the subject. In one exchange from his time serving on the Alberta Provincial Court, the judge asked a sexual assault complainant in court, “Why couldn’t you just keep your knees together?” Faced with this critical scrutiny and a recommendation that he be removed from office, Camp resigned in March from the Federal Court.

While judicial education might seem like a hot topic in 2017, it’s a question that’s been argued in the legal community for at least the past 20 years. For example, in 1996 Osgoode Hall law professor Allan Hutchinson challenged the Supreme Court’s Chief Justice Antonio Lamer in scholarly debate when the top judge advanced the traditional view that an imposed educational requirement breaches judicial independence. That historical view has gradually given way to a practical approach to independence, which acknowledges that the overall principle is not absolute.

For example, Canadian judges have tenure of office but must retire at age 75 since a constitutional amendment in 1960. Their remuneration is determined by independent commissions, but the Supreme Court ruled a few years ago that governments can reject salary recommendations if they have legitimate reasons and a reasonable factual foundation. To be sure, there are some current tensions around administrative independence and the relationship between judges and the government; a recent source of concern is the slow pace of judicial appointments at the federal level. But on the whole, as Chief Justice Beverley McLachlin noted last year, the judicial branch is regarded as an “independent” and “strong” institution that is “respected in Canada and abroad.”

The idea of compulsory education for judges does not necessarily contradict the principle of independence. Coincidentally, in the midst of this controversy, the Supreme Court of Canada rendered a decision in March that supported legal education as a mandatory part of professional regulation of lawyers. As I’ve argued before in the context of that case, an education requirement in law, whether for lawyers or judges, is justified as being reasonably within the public interest to ensure competence, improve quality of service and enhance confidence in the justice system.

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However, Bill-337 goes far beyond a simple requirement of judicial education. One proposed provision requires written reasons in sexual assault cases, but such a prescription may not improve matters in the court system. The Canadian Bar Association (CBA) has submitted that oral reasons delivered from the bench at the end of hearings may in fact shorten waits for decisions since written judgments can take many months to prepare. The CBA also notes that requiring written reasons may cause delays resulting in the dismissal of charges, because of a recent Supreme Court decision that imposed new time limits on proceedings. In any event, the CBA points out, there is already a legal requirement that all judicial decisions must be sufficiently justified.

Bill-337 also requires annual reporting to Parliament. These reports would provide details of judicial educational programs and the participation of individual judges, and they would indirectly identify those who had not taken courses. Such a requirement raises the spectre of judicial evaluation:  participation records could be used to critically assess the outcomes of cases with a view to altering the opinions of individual judges and influencing their future decisions. Judicial evaluative tools are “common” for some judicial officials in England, according to a 2012 study, and used in several American states. In Canada, though, one 2009 effort to assess judicial performance sparked what the Globe and Mail called a “firestorm.”

Beyond the specific requirements of the draft Bill, mandatory education for judges raises the possibility that a later government might impose further educational content on judges for political purposes. Such threats seem unlikely in the Canadian context. Taken to its extreme, the threat of authoritarian “re-education” is more commonly associated with illiberal political regimes, like China’s. But recent partisan attacks on judicial rulings in the US may lend substance to fears in this country about the possibility of ideological training for judges following criticism by politicians.

The recent public discourse on this subject has sparked two developments. The Minister of Justice recently announced additional measures to combat gender-based violence. These measures include new funding to provide more training for judges about the law on sexual assault and domestic violence, through the National Judicial Institute. In addition, the Canadian Judicial Council adopted a motion in April recognizing education training for new judges as mandatory, and it has recommended changes to the judicial application process that would require all prospective judges to provide an “undertaking” to pursue ongoing education if appointed.

These developments are welcome news to address judicial education in Canada. In my view, mandatory education for judges does not itself breach independence, especially as part of an attempt to address what appears to be a significant failing of the justice system in handling sexual assaults. It’s in the public interest that judges undertake education to enhance their knowledge and skills in this area. However, the additional requirements in the draft Bill seem to go beyond what is required for that purpose and risk breaching judicial independence. Parliament should carefully consider the wider implications for both independence and the rule of law to ensure that Bill C-337 does not do more harm than good.

Photo: Interim Conservative Leader Rona Ambrose tabled Bill C-337 in February. Here she is given a standing ovation as she stands to ask a question during question period in the House of Commons on Parliament Hill in Ottawa on Tuesday, May 16, 2017, the day she announced she will resign her seat. THE CANADIAN PRESS/Sean Kilpatrick

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Thomas Harrison
Thomas Harrison is a post-doctoral fellow, assistant professor (adjunct) and director of the Legal Ethics and Professionalism Program in the Faculty of Law, Queen's University. He is also a director at the Canadian Association of Legal Ethics. His PhD was on the independent role of lawyers and judges in Canada's court system.

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