Systemic racism training sought for judges
OTTAWA • A bill that requires sexual assault training for federally appointed judges has been amended by MPs to also include training on “systemic racism and systemic discrimination” — a change some see as a troubling sign politicians will keep venturing further into judicial training.
The legislation, which has now gone through three versions in four years, has seen widespread debate in the legal community over its constitutionality. Judges are self-governed through independent bodies to insulate them from political pressure, and already have their own training programs, including on sexual assault.
Supporters of the bill argue this is simply Parliament signalling that more must be done to protect the rights of sexual assault complainants and avoid basic legal errors.
They note that judicial organizations are still responsible for creating the actual training content.
But critics worry the bill represents politicians trying to inject their policy preferences into judicial training, and that once the door is opened through this sex-assault training bill, future governments will pile on with their own political priorities such as national security or immigration law.
As it turns out, MPs have not even waited for the bill to get through the House of Commons before adding to it.
Liberal MP Greg Fergus told the Commons justice committee on Tuesday that his amendments are in order because the bill already required the training to consider the “social context” around sexual assault. The new language specifies that social context includes “systemic racism and systemic discrimination.” It does not include any other topics, and does not define those terms.
“I found that this offered us a good opportunity to… include other groups into the purpose of the bill,” said Fergus, who chairs the parliamentary Black caucus. “Those are the reasons why I proposed some small modifications,” he said, in French.
The amendments were carried with Liberal, Conservative and NDP support, though they still need to pass in the full House of Commons and Senate. Only Bloc Québécois MP Rhéal Fortin voted against them, saying they stray too far off track.
“It's like we'd gone off to buy potatoes at the store, and we returned home with strawberries,” Fortin said in French. “If we want to work on a different bill than the original one, which was for training on sexual assault, and we want something different on systemic discrimination, that's fine and well, that can be something we could do. But we'll have to make another bill completely or reopen the witness list.”
Liberal MP James Maloney said Fortin's concerns about judicial independence could also be applied to the original bill, which Fortin supports. “We've crossed that threshold, Mr. Fortin,” Maloney said.
The legislation amends the Judge's Act to require judges “undertake to participate in continuing education” on sexual assault and social context, and requires that the Canadian Judicial Council develop the training “with persons, groups or organizations the Council considers appropriate, such as sexual assault survivors and groups and organizations that support them.” It requires the Council to report to Parliament on when the seminars were given and how many judges attended.
The first version was introduced by former Conservative leader Rona Ambrose in 2017, but it stalled in the Senate in 2019 over concerns of judicial independence. It was largely rewritten in the Senate, mainly by Sen. Pierre Dalphond, a former Quebec judge, who scaled back some of the more intrusive parts of the bill.
However, procedural wrangling kept the bill from advancing and it died on the 2019 election call. Justice Minister David Lametti revived it in February as government legislation, but that bill also died when Prime Minister Justin Trudeau prorogued Parliament in August.
Many in the legal profession are deeply concerned about the precedent the bill sets. “Of course, judges should learn about sexual assault and systemic racism,” Gib van Ert, a lawyer who was executive legal officer at the Supreme Court of Canada from 2015 to 2018, told the Post on Tuesday.
“They already do, through their own judge-led training programs. The problem lies in the training being mandated by politicians. When people go to court they need to feel their judge isn't just thinking and doing what the government tells them to.”