The Liberal government has recently introduced a bill that would require all federally-appointed judges to undergo training for sexual assault cases. This is a laudable goal, but it is not one that achieves the desired purpose in a well-planned way.
What Bill C-5 purports to do is protect the rights of survivors of sexual assault to have a fair proceeding that is not perpetuated by myths about sexual assault survivors. This stems, most likely, from some high-profile incidents including Judge Robin Camp who asked a complainant in a sexual assault case why she didn’t just keep her knees together, or the experience of the complainants in the Jian Ghomeshi prosecution.
But while acquittals in high-profile sexual assault cases, or high-profile mistakes made by judges may trouble the public and may expose sexual assault survivors to more trauma, this Bill misses an important mark.
The preamble to the Bill, which explains why this legislation is being introduced, identifies legitimate concerns: testifying in a sexual assault case can be re-traumatizing; sexual assault survivors often lack confidence in the justice system; it is important to dispel sexual assault myths so they do not permeate judgments in a negative way. But what it does not mention at any point is that it is also an important and fundamental principle of justice in Canada that accused persons are presumed innocent.
I worry that this legislation will function in a way to erode the presumption of innocence, if only in a small way.
There is a difference between the social movement of “I believe survivors” which tells us to believe people when they say they have been sexually assaulted, and to treat them with the appropriate care and respect when speaking about their experiences, and the role that such rhetoric has in a criminal trial. In essence, in our system of law where the state bears the burden of proof, a judge must enter the courtroom with an open mind, and wait to be persuaded that a crime was committed, and that the accused was the one who committed that crime.
Bill C-5 would require federally-appointed judges to take mandatory training on sexual assault. The training, pursuant to the Bill, would be developed in consultation with sexual assault survivors’ groups, organizations that support survivors, and other groups that the Judicial Council considers appropriate.
But just as the presumption of innocence and its fundamental role in the justice system is missing from the discourse, so too is the presence of respect for this in the education. There is no mandatory education in the proper application of the burden of proof, in weighing the evidence without a presumption of guilt, and there is no mandatory involvement of defence organizations, including groups that advocate against wrongful conviction like Innocence Canada.
These are, however, important voices to have at the table. Ensuring that the education judges receive is unbiased and that both sides of the conversation are represented prevents any possibility of the training becoming what many fear it may become: the introduction of a presumption of guilt in sexual assault cases based simply on an allegation.
The law also is arguably not going to achieve its desired purpose. Sexual assault cases are, by and large, tried in the provincial courts across Canada. While some cases are heard in BC Supreme Court, some are also heard by juries. Juries are not required, pursuant to this legislation, to receive any particular training or specific instruction from judges before deliberating in a sexual assault case. Similarly, provincial court judges would be exempt from the mandatory training.
The reality is, then, that if defence counsel wanted to (unethically, I might add) pursue an argument that was based in sexual assault myths at trial, defence counsel could simply obtain instructions for the trial to be held in provincial court in the hopes of getting a judge who had not received training about this.
In this regard, the Bill simply lacks teeth. It won’t do what it intends to do. People who do not want their trials to be affected by the training can avoid it by having their trials heard in provincial court.
Finally, the Bill in many ways is unnecessary. Judges at all level of court across Canada already are required to participate in training, both at the time they are appointed to the bench and annually in their time as judges. This training, for judges sitting in criminal courts, is already happening.
But at the end of the day, if specific training is going to be mandated for judges about sexual assault, the conversation and the training needs to include voices that will ensure and uphold the requirement that the starting point in any criminal prosecution is the presumption of innocence, and that it is only if and until the evidence proves the offence beyond a reasonable doubt that that presumption is overcome.
If the Bill fails to recognize that and fails to incorporate that in any meaningful way, I believe there is a very legitimate concern that this will be lost.