The woman in the witness box is defiant and clear as she recounts a litany of abuse to the court, including being sex trafficked, raped and held against her will.
She is an actress. So is the Crown, the judge and the accused men — one played by the son of one of the real judges who helped make this video. The script is taken verbatim from transcripts from a real case and it was made to educate judges about human trafficking, domestic violence and why a victim may not leave an abusive partner, may not call the police and may have an emotional connection to their abuser.
The goal was to learn to address these issues “institutionally as judges, individually as judges and individually as people,” Alberta Court of Appeal Justice Sheilah Martin told a group of about 45 judges in a conference room at a downtown Toronto hotel.
The Star was given access to the conference as debates continue around what education judges receive about issues such as gender-based violence, how effective it is and whether education in sexual assault law should be mandatory — questions sparked by the inquiry into Alberta judge Robin Camp, who infamously asked a sexual assault complainant why she didn’t just keep her knees together, and by a number of high-profile cases, including most recently an Alberta judge’s shocking decision to jail an Indigenous sexual assault complainant for the duration of her testimony at a preliminary hearing.
At the conference, after watching two segments of the video, the group was invited to write down one word that describes how they feel about what they saw.
The responses read later by Martin included “horror,” “sadness,” “disillusionment” and “helpless.”
During a break the judges submitted questions to a panel moderated by Martin and including fellow Alberta Court of Appeal Justice Sheila Greckol, U.S. judge Ann Goldstein from the International Association of Women Judges, and Nicole Barrett, an expert on law and human trafficking from the University of British Columbia.
The first question — how common is the woman’s explanation for why she did not leave?
Barrett said the story is all too familiar.
“She is isolated from others, she lacks financial independence, she has broken self-esteem, she has a fear of escalated violence, she has a fear of retaliation, that they will tell her family, a psychological bond with her abuser,” she said. “Once you start listing the reasons she doesn’t leave, it becomes fairly overwhelming.”
This particular complainant is somewhat of an outlier because of the clarity and detail of her memory, she noted.
The next question struck at the heart of why judges were in that room on a Thursday morning.
“Until this job and judicial education,” the question began, “I had no way to be aware this happens to ordinary folk.”
In the wake of the Camp inquiry and other high-profile cases, Ontario made it mandatory for new judges to be trained in sexual assault law. The Canadian Judicial Council, which oversees judicial education, made training for new judges officially mandatory in March.
A fast-tracked federal bill proposed by former Conservative leader Rona Ambrose is now before the Senate. It would require lawyers applying to be judges to have completed sexual assault law and social context education. It would also require the Canadian Judicial Council to report annually on what sexual assault-related education they provide, how many judges take part, and how many judges preside over sexual assault cases but have not taken such a seminar.
“Canadian courts are failing to send the message that sexual assault and all forms of violence against women are unacceptable,” says Lise Martin, executive director of Women’s Shelters Canada, in her submission to the Status of Women Committee in support of mandatory and ongoing education for judges in gender-based violence and the impacts of trauma.
“We continue to see our work undermined by Canadian judges, who label domestic violence as a private matter and misunderstand the basic ideas and laws about consent and sexual assault,” Martin says.
This particular conference in June was unusual because it was only for women judges who make up just 38 per cent of the total number of federally appointed judges. The sessions on the topic “Safety and Security of Women,” which included a seminar on the issues presented by sexual assault trials, were organized by the federally-funded National Judicial Institute and the Canadian chapter of the International Association of Women Judges.
In an interview Superior Court Justice Patricia Hennessy, who is based in Sudbury and is currently working on judicial education for Indigenous issues, referred to the human trafficking case discussed earlier.
“The first step is to recognize that is not our reality,” she said, of the woman involved.
“Does it make sense that she would not have left. Does that make sense? That is what the defence would like us to conclude, it makes no sense that she would not have left. But we don’t know her reality.”
Hennessey said judges do need ongoing education in various areas of the law and in changing social context — and that the training courses being developed by the National Judicial Institute and taught courts across the country are crucial.
“The criminal laws have changed as societies have changed,” Justice Martin said, adding that it is important for judges to understand how and why those changes happened.
“It’s the most effective thing we’ve ever seen,” Martin said. “Can it solve all the issues? No, it can’t.”
The goal of the “social context” education, specifically cited in the federal bill, is to help judges understand diverse life situations of the people that we serve, said Justice Adele Kent, who heads the National Judicial Institute. “Judges have to understand the people they are judging.”
That training examines race, disability, region, poverty, mental illness and gender-based violence and is designed, like the human trafficking seminar, with input from academics and community groups, she said, addressing criticism that the training doesn’t incorporate the experiences of those impacted.
“I think we all carry with us a certain amount of prejudice or stereotypical thinking,” Greckol said. “We all do and it’s defined by race and gender and . . . class, economic class is a big factor. So we come with that baggage and that is obviously going to weigh into our thinking about things. So I think what judicial education is about is disabusing our judges of predispositions to thinking in certain ways and the broadening of the mind to accept there are no predetermined answers to questions.”
She said it has been very useful for judges to have frank and open discussions about their prejudices and have educators explain why it is a myth or stereotype.
Then the question is, when training is given at optional conferences like this one, “are we preaching to the converted?” said Toronto Superior Court Judge Julie Thorburn, the organizer of this conference.
Ongoing training for judges in specific areas is not mandatory by law, but she said the education programs organized at each court twice a year are effectively mandatory. And those education courses are constantly improving, she said.
“At the end of the day I think we are talking about decency and sensitivity to people and situations, and sometimes it is difficult to train people to be decent and to be sensitive to others,” she said. “We try.”
They said more also needs to be done across the board to tackle sexual assault — from the police and lawyers to alternative models from the criminal justice system.
In the courtroom “we can start from the very basics,” Kent says. “To be polite to people . . . to make sure people feel comfortable. To make people feel they are valued even if it ends up in an acquittal.”
Thorburn said it can be helpful to judges to hear expert evidence in certain cases in order for them to have something to rely on when assessing credibility.
Martin too stressed the importance of social science research. “Judges should not rely on untested assumptions about human behaviour,” she said.
There is no one way for people who have been traumatized to react. Victims of sexual assault do not have to have screamed or resisted to be credible.
But, she said, attitudes may not have changed with the law.
“We can work on those kind of underlying assumptions that may undercut credibility in a manner that isn’t fair and equal,” she said.
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