Manitoba not planning to follow Ontario’s lead on judges’ sex assault law training: report
A Winnipeg newspaper says the Manitoba government has no plans to try to legislate upgraded training in sexual-assault law for its provincial court judges.
The Free Press says the province is not following Ontario, where introduced legislation requires new judges to follow an updated education plan that includes extra training on sexual-assault law.
The paper says Manitoba will also not adopt a federal private member’s bill that passed through the House of Commons, which mandates sexual-assault law training for all federally appointed judges.
In response to an inquiry from the media outlet, Minister of Justice and Attorney General Heather Stefanson says in a statement that her department is not contemplating any such legislation changes, saying it respects judges’ independence.
In an interview with AdvocateDaily.com, Toronto civil litigator Anna Matas says she’s disappointed with Manitoba’s decision.
“Survivors of sexual assault should be able to expect judges to have the same level of training, regardless of which court they’re in, or which level of government appointed the judge hearing their case,” says Matas, an associate based in the Toronto office of Lerners LLP.
Provincial court judges in Manitoba receive at least 10 days of judicial education per year, and their education and training is planned by a Manitoba Provincial Court education committee.
None of Manitoba’s three chief judges was available for comment.
“We are very concerned for the victims of sexual assault and believe their cases should be heard with timeliness and sensitivity. Our government is currently observing how this supplementary education is implemented in Ontario to determine best practices,” Stefanson’s statement reads.
A statement issued by a provincial court spokeswoman said the Provincial Court of Manitoba constantly reviews the need for judicial education on particular topics as part of a long-term approach to the issue.
“Judicial education has many sources including formal and informal education and self-directed learning. The provincial court holds two in-house education sessions per year on various topics. The next in-house education session will focus specifically on sexual-assault issues, including social context,” the statement said.
If it gets Senate approval and comes into effect as law, the federal bill — proposed by then-interim Conservative leader Rona Ambrose — would mean changes to training for federally appointed judges.
But there are concerns government interference in what judges learn is dangerous to Canada’s long-held principle of judicial independence.
Justice Adele Kent, executive director of the National Judicial Institute — which runs education programs for federally appointed judges — said the idea of legislating what judges learn is a new phenomenon.
She’s flagged parts of the federal legislation, including a provision to involve those who work with victims of sexual violence in developing training programs.
“There is a worry there, and I’ll just characterize it as a worry, that that is impacting judicial independence,” she said. “Judicial education needs to be led by the judges and the judges have to determine what the content of that education is.”
The institute works to give judges the most impartial information possible, she said, “and there is a risk if it is done by outside institutions that there may be a certain bias or a certain point of view in the education, that means it is not unbiased and fair.”
Matas says “the suggestion that sexual-assault training would impact judicial impartiality is unfounded. Legislation requiring judges to be educated on sexual-assault law isn’t the same thing as legislating judges to decide sexual-assault matters in favour of complainants.”
While education doesn’t change a judge’s job — to decide individual matters based on the facts of the case — it may better equip them “to avoid the persistent myths and stereotypes about rape, and other forms of sexual assault, that continue to impact some judges’ decision-making,” says Matas.
She cites the case of the former Alberta judge who asked a sexual-assault complainant why she couldn’t just “keep her knees together” to avoid being raped.
“The concerns over involving organizations or institutions that work with survivors of sexual assault in judicial training is also unfounded,” says Matas.
“The need for expert opinions in many types of cases is well-established,” she says. “Trauma, including sexual assault, affects people in different ways and can impact a variety of issues relevant to the judicial process — from the victim’s post-assault conduct to how that individual may present in court. Organizations that work with survivors of sexual violence can provide valuable insight on the impact of trauma on victims, which can be of assistance to judges. These organizations are often directly involved in research and can offer a unique point of view.”
Judges do receive training in how to spot and curb rape myths or stereotypes. They learn about sexual-assault trials in the NJI’s new judge school and will often take in seminars on sexual-assault law, Kent said, noting the “complex” nature of sexual-assault trials.
“There is a variety of times when judges get education on sexual-assault trials. Do they need more? I always like to say that it’s good for judges to have as much education as they can, recognizing they need education on a variety of topics,” she said, noting any education for judges has to be approved by their respective chief justices.
Kent also said in the wake of former CBC broadcaster Jian Ghomeshi’s high-profile sexual-assault trial and recent public outcry after a now-resigned Alberta judge asked a sexual-assault complainant why she couldn’t keep her “knees together,” there’s increasing transparency around judicial education.
This article originally appeared on AdvocateDaily.com