Sometimes judges make mistakes. Sometimes they get the facts wrong. Sometimes it’s the law. Mistakes are often corrected by appeal courts. That is how our system works. And although nothing is perfect, our system works pretty well.
In some cases, when a judge makes a mistake, there is public outcry. Editorials are written. Academics pen long think-pieces from their ivory towers. Newspapers publish editorials. And politicians seize the opportunity to propose new laws to correct the perceived problem.
Let’s be clear, little of this applies when a judge makes a mistake to the detriment of the accused. There are no private members bills born when courts wrongly enter a conviction because a judge wrongly reversed the burden of proof or misapplied the presumption of innocence. There is little public outcry or indigent newspaper editorials when an innocent is sent to jail
These cases are corrected, if they are ever corrected, through the hard and large unrecognized work of appeal counsel. There are no calls for judicial education because a handful of judges misapplied laws designed to prevent wrongful conviction – although that happens more than we would like to imagine.
But when it comes to sexual assault cases in the post-Ghomeshi world it has been a very different story.
It is true that much of the Canadian legal history, when it comes to sexual offences, was defined by the misuse of stereotypes and myths. This is why there is specific legislation to prohibit the use of these myths and stereotypes – even when the evidence is probative. But sometimes defence counsel still strays into forbidden territory. Crown counsel do too. And occasionally Courts still make legal errors.
So, enter Rona Ambrose and her 2017 private members bill that sought to mandate judicial training on sexual assault law. Ambrose’s bill died in the Senate after flying through the House of Commons with unanimous support.
There have been accusations that the Senate was playing politics with Ambrose’s judicial education bill. Ambrose herself called the Senate’s failure to pass the bill “shameful”. And the Liberals have promised that they will re-introduce the bill if they are returned to government.
But maybe, there was more than shameful politics to blame for the Senate’s reluctance to pass the bill. You see, there was little legislative debate in the House of Commons. It was almost as if the bill had no flaws at all. However, as parliamentary journalist Dale Smith pointed out there were indeed problems lurking beneath the surface of the judicial education bill.
Ambrose’s bill mandates judicial training on “education in sexual assault law that has been developed in consultation with sexual assault survivors, as well as with groups and organizations that support them.” The problem here should be obvious – an interested party should not be involved with training the judiciary. In our adversarial system, this type of behind-closed-door partisan education sets fertile conditions for the perception of bias.
There is also the logistical issue of mandating specific training for every judicial applicant. If you thought the appointment process was slow now, just wait. Those who have pointed to a lack of timely judicial appointments as a reason why cases, including sexual assault cases, have been thrown out of court should be concerned.
And why just sexual assault training?
In a recent editorial the Toronto Star demanded that judges receive better training in sex assault laws and lamented that Ambrose’s bill was not rushed into law. The Star pointed to two cases in the last two months where appeal courts retuned cases for new trials because of mistakes related to the application of rape shield laws. This is a pretty small sample size to ground calls for parliamentary intervention. And what about other judicial mistakes?
Trust me on this one, there is more than one case a month where court have misapplied the burden of proof, undermined the right to silence, or too-narrowly applied Charter protections. Can we have mandatory, pre-judicial application training on these topics, too? Please? Maybe this mandatory education can be provided by defence lawyers?
Both cases referred to by the Toronto Star were corrected on appeal. There was no extra and potentially problematic judicial education needed. Because when judges get things wrong, an appeal – not new government legislation – is usually the best answer.
Leaving aside the issue of political interference with judicial independence, the belief that Ambrose’s bill represents some sort of panacea is folly. And the sad thing is that there is so much that we can be doing that might make a difference in the lives of complainants. We don’t need to pin our hopes on a flawed private members bill.
Step down from your ivory tower with me for a view from the trenches; where complainants are provided inadequate social supports; where complainants are almost always provided inadequate information about the court process; where the legal education of lawyers (both Crown and defense) is too often seen as an expensive obligation and not a learning opportunity and where the wishes of complainants are often ignored.
Maybe we can start by tackling these problems.
Because there are many ways that the justice system can be modernized to ensure that it truly brings justice to victims of sexual violence. But, holding out Ambrose’s bill as a silver bullet misses the opportunity for real progress and misses the opportunity to bring about real, meaningful reforms.
In the end, the House of Commons may have seen voting for Ambrose’s bill as the path-of-least-political-resistance, but it was not the fix that the justice system truly needs.