Our two summer law students, Serena Saini and Megan Ripplinger, posted an excellent article on Bill C-3 and the judicial training of federally appointed judges concerning sexual assault cases.  Their post represented a good summary of the proposed legislation and identified the issues associated with this initiative. 

I am deeply concerned with the concept of any government “training judges” on any particular issue.  In this case it relates to “sexual assault law and social context, which includes systemic racism and systemic discrimination”.  I have two major concerns. 

First, we operate in an adversarial system applying the rule of law.  As I have said many times before, while our system is far from perfect it is nonetheless the envy of many around the world.  People, on a daily basis, are fighting to achieve what we have.  The cornerstone of our judicial system is that an accused person has the right to a trial before an impartial trier of fact.  For this reason, it is extremely troubling that the government has decided that it will “educate” judges on a particular factual issue. 

Morris Shumiatcher, OC, QC, in his book Man of Law: A Model, described how the adversarial process worked as follows:

“The adversary system of arriving at a true and just result in a trial at law has often been regarded by those who have never participated in debate to be as archaic as the medieval trial by combat of which it is in fact the direct descendant.  For all its imperfections, no more effective method has been devised to test the soundness of a principle or the truth of an allegation.  The process depends upon the ability of men (and women) of law to champion the cause of the disputants and to urge, each for his client, the soundness of his position and the justness of his cause.”

Each side is expected to lead evidence which is relevant and admissible to the particular issue.  This is presented to an independent judge, or in some cases a jury, and the adjudicator is expected to make a decision uninfluenced by any other sources beyond the applicable law and the evidence presented at the trial. 

Jurors are routinely instructed on this issue.  While jurors are not expected to leave their common sense at home, they are to make their decision based on the evidence presented and the applicable law and to avoid any outside influence.  For some reason, the government has now decided that lawyers are incapable of assembling the evidence and judges are unable to apply the rules of evidence and the restrictions on what is admissible that are already in place.   It has been decided that judges have to be educated beforehand on a particular issue.  We do not know what influence it might have on a particular factual determination.  It is reasonable to conclude that this outside influence may have some impact on the ultimate decision. 

For practical purposes, here are some of the questions that I would have: 

  • Am I entitled, as defence counsel, to know what the particulars are of the training that the judges have received? 
  • Am I allowed to challenge that training in a particular trial?
  • Can I argue that a judge should be disqualified because of the training and the outside influence it may have on their decision? 
  • Am I able to call my own expert evidence to challenge the training? 

The second concern is that this process creates a precedent for government training of judges in any number of areas.  In the case of sexual assault, we are dealing with an extremely serious social evil that as a society we must address.  The problem with this precedent is that the next government that comes along may have a view on another issue which they feel is important and decide to “educate” judges as well.  For example, we have seen recently an abundance of legislation in the United States attacking pro-choice rights.  The government of the day might decide that they want to educate judges that life begins at conception.  Going down the path of training judges, as set out in Bill C-3 opens the door for that kind of mischief in the future. 

As a society, we have the right to expect, indeed demand, that judges be fair and impartial.  The decisions of trial judges are subject to appeal.  Mistakes are occasionally made and they can be corrected on appeal.  The two examples cited by Serena and Megan in their article are cases where the appellate courts stepped in and corrected an error.  Those two cases represent a small fraction of the sexual assault cases that are dealt with by the courts.  (That in itself might be an indication of how serious the problem is.)  However, they should not be used as a basis to erode a fundamental cornerstone of our judicial system, that being the independence of the judiciary. 

Aaron A. Fox, Q.C.
McDougall Gauley Defence Group

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