Talk about the sexual assault training for judges bill has continued, and the Conservatives have continued to float the idea that it should be expanded to include Parole Board officers. The problem there, of course, is that the bill deals with amendments to the Judges Act, which has bugger all to do with the Parole Board, and this too-cute-by-half tactic of the Conservatives betrays how boneheaded their tactics are.
Meanwhile, Gib van Ert, former Executive Legal Officer to the Chief Justice of the Supreme Court of Canada (who heads the Canadian Judicial Council), has some thoughts on the bill and why it’s very problematic.
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.https://t.co/OTFZS3VwW6
— Gib van Ert (@gibvanert) February 5, 2020
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: pic.twitter.com/kgXr1bIfbN
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
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: pic.twitter.com/ahPZN7ify0
— Gib van Ert (@gibvanert) February 5, 2020
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: pic.twitter.com/YH2Hdta39e
— Gib van Ert (@gibvanert) February 5, 2020
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?
— Gib van Ert (@gibvanert) February 5, 2020
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?
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
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.
— Gib van Ert (@gibvanert) February 5, 2020
Some scholars have shrugged and say “Big deal if it means they get more training,” but the original legislation was far more insidious in that the reporting requirements were a threat do the administrative independence of the court as well. But I’ve spoken to former judges who say this is unnecessary. Another one responded to van Ert. Part of the problem is that there have been high profile cases where the judge has been very wrong on sexual assault law, and that tends to be overturned at the appellate level – but much of the time, the most infamous cases have been provincial court judges, which this doesn’t deal with.
Which raises the question, Why is the government doing this? What problem is this meant to solve? https://t.co/mMUQxmJQRt
— Gib van Ert (@gibvanert) February 6, 2020
So why are they doing this? Optics. MPs want to look like they’re doing something about the problems or perceived problems, and they’re taking the sledgehammer approach because it looks effective, even when it may not actually be. But that is so much of politics these days, which we need to start breaking out of.
Good reads:
- Justin Trudeau announced the new composition of the NSICOP, which now includes a Bloc MP.
- Chrystia Freeland is headed to Washington along with a group of premiers to meet with US officials and governors.
- François-Philippe Champagne advised any Canadians in China to consider leaving by commercial means while they still can.
- Some of what came out of Ambassador Barton’s appearance at the Canada-China committee was an articulation of the chill that has set into the relationship.
- There’s been a spat between Ukraine and Iran regarding the black box recorders, but it seems like Iran might maybe be backing down?
- CSE says that they mistakenly monitored a Canadian (which they are not allowed to do) for five years before rectifying the situation.
- It sounds like CRA has made some progress toward not dropping calls and better training to avoid giving wrong answers – but they still have a ways to go.
- Senator Lynn Beyak denies that she identified as a Métis during her racial sensitivity training, but several accounts say that she did.
- The Conflict of Interest and Ethics Commissioner found that former Liberal MP Joe Peschisolido habitually forgot to provide disclosure updates to his office.
- Here’s a look into how disorganized and incoherent Peter MacKay’s campaign has been to date, which probably speaks volumes as to the job he’s aiming for.
- Talks with the province have broken down in the BC Coastal Gas Link dispute.
- Kevin Carmichael parses Bank of Canada deputy governor Carolyn Wilkins’ speech about the need for Canadian businesses to boost productivity.
- Susan Delacourt pans Yves-François Blanchet’s accusations that the courts are biased in favour of the federal government, and what that politicisation represents.
Odds and ends:
Here’s a look at what Harry and Meghan may expect when it comes to privacy laws in Canada, as well as our media climate.
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