Amendments to the Judges Act and the Criminal Code: Continuing education for judges in sexual assault law and social context and greater transparency in sexual assault decisions

Amendments to the Criminal Code and Judges Act that address judicial continuing education and aim to increase public confidence in the criminal justice system became law and came into force on May 6, 2021.

The changes to the Judges Act require candidates seeking an appointment to a provincial superior court to agree to participate in training on matters related to sexual assault law and social context, which includes systemic racism and systemic discrimination. This training would take place following their appointment. This new law will help ensure that the public has confidence that judges have the awareness, skills and knowledge of sexual assault law necessary to deal with cases in a manner that is respectful to sexual assault survivors.

The changes underscore the Government’s commitment to doing its part to promote a justice system in which sexual assault matters are decided respectfully and fairly, without the influence of myths and stereotypes, and with dignity and compassion for survivors.

The legislation also amends the Criminal Code so that it requires judges to provide reasons for decisions under Criminal Code sexual assault provisions, including those that are decided under historical sexual assault offences, either in writing or on the record of the proceedings. This requirement is intended to enhance the transparency of judicial decisions in sexual assault proceedings.

History

The legislation began with a Private Member’s Bill, former Bill C-337, in 2017. In 2020, the Government introduced proposed changes to the Judges Act and the Criminal Code in the House of Commons and those changes have now received Royal Assent. Throughout their history, these changes garnered widespread support from stakeholders and many parliamentarians.

Maintaining judicial independence

In order to respect the principle of judicial independence, the judiciary controls continuing education for judges. The Canadian Judicial Council establishes the professional development requirements for superior court judges. The Council collaborates closely with the National Judicial Institute, which is an internationally recognized, judge-led organization that is independent from government. The National Judicial Institute is responsible for the overall coordination of judicial education in Canada, in addition to being a primary education provider.

Role of the Canadian Judicial Council

The legislation clarifies that seminars established by the Canadian Judicial Council on matters relating to sexual assault law should be developed after consultation with individuals, groups or organizations it considers appropriate, such as sexual assault survivors and organizations supporting them, including Indigenous leaders and representatives of Indigenous communities.

The legislation also encourages the Canadian Judicial Council to provide to the Minister of Justice, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and social context, including the number of judges attending. This is intended to enhance accountability in the education of sitting judges on these matters and to act as an incentive to encourage their participation.

Social context education

Social context education is designed to teach awareness and skills for judges to ensure that all people who come into the courtroom are treated respectfully and fairly. Judges must ensure that personal or societal biases, myths and stereotypes do not influence judicial decision-making. This requires that judges understand the social context in which they hear matters and the factors that may affect engagement with the justice system. This includes gender, race, ethnicity, religion, culture, sexual orientation, differing mental or physical abilities, age, socio-economic background, and family violence and violence against children. As the legislation specifies, social context includes systemic racism and systemic discrimination.

Commitment to judicial education

While these changes represent an important legislative step, the Government has also committed resources to support the availability of enhanced judicial continuing education in these areas.

In Budget 2017, the Government provided the Canadian Judicial Council with $2.7 million over five years, and $0.5 million per year thereafter, to ensure that more judges have access to professional development, with a greater focus on gender and culturally-sensitive training.

Parliament does not have the authority to legislate in relation to provincially- or territorially-appointed judges. However, the federal government supports policy and program measures, and is committed to working with its partners, including provinces and territories, to enhance the availability of training for these judges.