Sex assault training for judges must be enshrined
We write as two Parliamentarians — one long retired and the other about to retire — whose careers have both involved legislative initiatives on the issue of justice and sexual assault.
In 1991, when Kim was minister of justice, she led a comprehensive revision of the sexual assault provisions of the Criminal Code. In addition to revising the rape shield law to make it consistent with a recent Supreme Court of Canada decision, the new law provided clear definitions of when consent could be found as a matter of law and put limitations on the defence of “honest but mistaken belief” in consent.
The bill also included a preamble to allow courts to take judicial notice of the circumstances in which Parliament had enacted this law. So, it seemed, there was admirable clarity to guide the courts in adjudicating this complex issue of criminal law that touches so closely the lives of women.
As a male MP remarked during the parliamentary debate, the fear of sexual assault is a constant part of the backdrop of a woman’s life and determines a great deal of what she does and where she does it. Thus, the law was important to ensure that women could seek justice in these cases.
In the 25 years since the “No means no” law was passed, there have been numerous examples of courts failing to honour its provisions and of erroneous and prejudicial attitudes being expressed from the bench in sexual assault trials. Sadly, examples like the recent case in Alberta where a judge asked a woman in a rape case why she couldn’t “just keep her knees together?” happen too often. This has led to a lack of confidence in our justice system by victims of sexual assault.
As a consequence, 90 per cent of victims of sexual assault do not report to police. This is even more tragic when we realize that 1-in-3 women will experience some form of sexual violence in her life. And the statistics for Indigenous women are far worse.
Earlier this year, Rona’s private member’s bill, C-337, also known as the JUST Act, was tabled in the House of Commons. This bill would require that all lawyers who are federally appointed judges undergo training in sexual assault law. The JUST Act would ensure that any judge who presided over a sexual assault case would not only have proper training in the law, but also in rape mythology, stereotypes and bias.
After extensive committee meetings and a great deal of hard work by all political parties, the JUST Act was passed unanimously in the House of Commons.
As the first woman to be minister of justice, Kim convened a National Symposium on Women, Law and the Administration of Justice in June 1991. A number of judges were among the participants. Several remarked that while they thought they were rather “liberal” on women’s issues before they came, they realized they had a great deal to learn. The symposium stimulated a wide range of activities relating to judicial education in gender issues, but clearly more needs to be done.
We cannot assume that all judges are knowledgeable about the destructive attitudes that often constitute barriers to sexual assault complainants. We assume that judges want to do justice in their courtrooms and we need to support their understanding of issues that might not have constituted part of their education or experience. Recent failures have not only been disastrous for complainants and humiliating for judges, they have also brought the administration of justice into disrepute.
We cannot claim to have gender equality when discriminatory attitudes constitute a barrier to justice. Parliament’s unanimity in supporting the JUST Act is an important declaration of that principle to Canadian Women. This fall, the JUST act will have the chance to pass into law. We urge the Senate to consider this bill carefully in committee and help our judges give the women of Canada the justice they deserve. Hon. Rona Ambrose recently served as Canada’s Leader of the Opposition and Leader of the Conservative Party of Canada. Throughout her career, she has been a champion for the rights of women and girls and will continue to be a leader in this area in her post-political life. Rt. Hon. Kim Campbell served as Canada’s 19th Prime Minister. As Justice Minister, she brought about the most important reforms to sexual assault law in Canada in a generation. She continues to be an outspoken advocate for the rights of women around the world.”