Prime Minister Justin Trudeau is interfering with judicial independence through directing how judges should be educated, B.C. lawyers say.
“Judicial independence is a fundamental cornerstone of the rule of law,” the Law Society of B.C. (LSBC) said in a statement sent out to B.C. lawyers Aug. 13. “The rule of law suffers where those in power do not demonstrate proper attention to its underlying principles and protections. Government communications must reflect an understanding of the importance of judicial independence.”
In his Dec. 13, 2019 mandate letter to Minister of Justice and Attorney General David Lametti, Trudeau said, “You will: ensure mandatory training for judges in Canada on: sexual assault law, including myths and stereotypes about victims and effects of trauma on victims’ memory; and on unconscious bias and cultural competency.”
The letter further directed Lametti to “develop proposals for reform of Canada’s system of judicial governance and discipline.”
And, the government did take action on the directive with Bill C-5: An Act to amend the Judges Act and the Criminal Code.
The bill summary said it “amends the Judges Act to restrict eligibility for judicial appointment to persons who undertake to participate in continuing education on matters related to sexual assault law and social context. It also amends the Judges Act to require that the Canadian Judicial Council report on seminars offered for the continuing education of judges on matters related to sexual assault law. Finally, it amends the Criminal Code to require that judges provide reasons decisions in sexual assault proceedings.”
However, in its statement, the LSBC said, “The directive nature of the Prime Minister’s language in his letter – particularly on the education issue – is unfortunate and, at worst, can be harmful to the principles of judicial independence.”
The province’s legal profession regulator noted the government clearly has an interest in ensuring high standards for the country’s judges given their prominence in society.
But, the LSBC said, the separation of the judiciary from the legislative branch is a key constitutional principle in ensuring the protection of Canadians’ rights and freedoms.
“Despite this, the prime minister’s mandate letter expects his minister of justice to take steps to develop proposals through which to discipline Canada’s judges and to ensure Canada’s judges are educated on certain specific matters,” the society said. “This casts a chill over judicial independence by creating the spectre of executive direction in judicial discipline, and the prospect of executive interference in the education of the judiciary.”
That should raise concerns, the society said.
“It is unlikely that a Canadian government would use such programs to educate the judiciary toward a certain point of view that was favourable to the government,” the society said. “However, the prime minister’s expressed expectation to his minister of justice opens that possibility.”
Trudeau’s press secretary Alex Wellstead referred questions to Lametti’s office.
There, press secretary Rachel Rappaport said the Canadian Judicial Council was involved in the bill’s creation and that training would be developed, implemented and overseen by the council.
“Public confidence in the integrity of our public institutions, including the judiciary, is of great importance to our government. Judicial independence is a fundamental principle of our democratic system, and we have a responsibility to ensure that this principle is upheld as we work together with the judiciary to make improvements to our system,” Rappaport said.
Further, she said, “The judiciary and the broader legal community can be assured that any future measures involving the judiciary will be considered in consultation with them and in full respect of the principle of judicial independence.”
LSBC spokesperson Vinnie Yuen said the statement was published as commentary from the society’s rule of law and lawyer independence advisory committee.
“There is no current plan to take further action,” Yuen said.
The committee’s aim is to generate dialogue and promote understanding of the rule of law, and providing commentary on issues that impact the rule of law is one of those efforts.