Here’s a thread on Bill C-5, the government bill requiring newly appointed judges to take seminars on sexual assault law. It seems admirable, but it’s a questionable innovation that, in the long run, could undermine confidence in the judiciary instead of increasing it.
Here’s the press release for C-5. The bill is similar to, but not the same as, Rona Ambrose’s private member’s bill C-337 that failed to make it through Parliament in the last session.
canada.ca/en/department-…
canada.ca/en/department-…
The bill does a few things, but I’m focussing on its change to the eligibility requirements for would-be judges. Right now, the only requirement is 10 years at the bar. Here’s the current section 3 of the federal Judges Act: 
C-5 amends this by folding paragraphs (a) and (b) into each other and making a new para. (b) about continuing education on matters related to sexual assault law and social context:
So if you’re a lawyer who wants to be a federally-appointed judge, bill C-5 means you will now have to undertake (promise) to participate in continue education on matters related to sexual assault and social context. This is a big change to how we appoint judges.
We’ve had judicial education for a long time, and there has long been a sense of professional duty among judges to take courses. But we’ve never required aspiring judges to take training as a condition of employment. And we’ve never singled out one area of law for training.
Sexual assault law is an area plagued by myths and stereotypes that can lead to judicial error. The human cost of these mistakes is high. Victims may be discouraged to report crimes. Perpetrators may go unpunished. Witnesses can be humiliated. So training is key.
But here's my slippery slope argument (SSA). Let me first say I dislike SSAs. Life is full of slopes and you can’t always go around them. A lot of SSAs are alarmist—the risk is too small to worry about or the benefit way outweighs the risk. So be skeptical of SSAs—including mine.
But sometimes slippery slope arguments have merit. You might be doing something that makes sense in this case, but sets you on a path for future error. You might be solving one problem by creating more.
If bill C-5 goes through, the eligibility requirements for judges will go from experience only (10 years at the bar) to experience plus willingness to commit to taking specified training courses. Who specifies the training? Parliament. Which usually means the government.
This government says the training should be about sexual assault law and social context—undeniably important topics. In fact, the National Judicial Institute has been giving judges training on these topics for many years. Most judges & lawyers I know think this is a good thing.
But what will federal governments add to this new judicial syllabus in future? Lots of groups will think—with good reason—that their concerns and interests also merit mandatory judicial training.
For example, there is a growing awareness that racism isn’t just personal, it’s systemic. It happens even when not-intentionally-racist people get together and do things. We are all better off understanding and confronting this— judges especially. So let’s add it to the syllabus:
But the syllabus could still be improved. Canada is colonial state with major, ongoing problems over indigenous rights and reconciliation. The justice system is where much of these struggles play out. We need to do better. So:
These problems, urgent as they are, will be moot if life on planet Earth is wiped out by man-made climate change. The scientific consensus is that we are running out of time to turn things around. Courts scrutinize Parliament’s efforts to meet the crisis. Better train the judges:
So far I’ve been adding what might be regarded as progressive concerns to the judicial syllabus. But this new tool can be used by governments of all political stripes:
My fear is that if Parliament starts treating section 3 of the Judges Act as a legitimate means for governments to advance their policy agendas (however estimable), judges and would-be judges will be equated with civil servants to whom marching orders can be issued.
To some extent judges *can* be given marching orders. Every statute is a sort of marching order for judges. What’s the difference between telling judges what laws to enforce and telling them what courses to take?
It’s a fine distinction: telling judges what to do versus telling them what to think. Legislatures can tell judges what to do (within constitutional limits), but when they tell judges what to think, separation of powers & judicial independence concerns arise.
Judges give effect to laws. But they also scrutinize government and legislative action. People need to believe judges really are independent from governments, or they will lose confidence in the system. Why sue the government if the judge is a government stooge?
Governments telling aspiring judges what courses they have to take, instead of trusting judges to train themselves (as they have been doing very successfully in Canada for decades), treats judges as less than independent.
I won’t venture an opinion about whether bill C-5 is unconstitutional in the technical sense of being of no force and effect because inconsistent with the written constitution. But it's at odds with our constitutional structure and ethos. It's not a path we should go down.
Two postscripts. First: the Judges Act only concerns federally appointed judges. Lawyers appointed judges by the provinces will not be subject to bill C-5. That’s a big gap in the regime because many sexual assault trials are conducted in provincial court.
Second: the Judges Act applies to all federally appointed judges, includes some who never conduct sexual assault trials or appeals. Forcing an aspiring Tax Court judge to take sexual assault training (at public expense) is odd.
I might be wrong about this last point. Section 3 of the Judges Act refers to judges "of a superior court in any province". The Interpretation Act defines superior court to include the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court and the Tax Court...
...so I think s. 3 applies to them. But maybe the phrase "in any province" excludes those national courts? Not sure. Happy to be corrected if I am mistaken here.
