A bill requiring federally-appointed judges to undergo sexual assault training has been amended by MPs to include training on systemic racism and systemic discrimination, the National Post has reported.
The amendment, proposed by Liberal MP Greg Fergus, adds controversy to an already controversial proposal, originally tabled by Conservative MP Rona Ambrose. Legal professionals have disputed the constitutionality of such a law, as judges are supposed to be governed through an independent body protecting judicial independence. Critics have suggested that the passage of the bill could set a precedent whereby the government can continue to pile on training requirements in order to advance other policy goals.
Gib van Ert, a former executive legal officer at the Supreme Court of Canada, expressed these concerns in a Macleans article from February of this year in response to the original bill. Speaking rhetorically, van Ert wrote "[why] not put a few more required courses on the judges’ curriculum? Why not train our judges in systemic racism, Indigenous laws and rights, climate change, national security and counterterrorism, border security and unlawful migration?”
"We can all agree that judges should be fully trained before conducting a sexual assault trial. But sexual assault is not the only issue politicians and voters might want judges to know about," he explained. His prediction turned out to be true even before the bill could reach the Senate.
Other critics have noted that the term 'systemic racism' is never defined within the bill itself, leading it wide open to interpretation by future governments. Scholars of systemic racism typically argue that the existence of any disparity between racial groups is evidence of systemic racism even when disparities are explained by other factors, which necessarily demands equity initiatives in order to fix. This could potentially undermine the principle of blind justice, as "justice" may be applied unequally to individuals in order to achieve an equitable outcome in recognition of historic group injustices.
Supporters have argued that the legislation does not force the views of the government upon judges, as independent judicial bodies will be deciding how to interpret the directive.
Senator Pierre Dalphond, a former Quebec judge who helped rewrite the bill, countered critics by arguing that systemic racism is only discussed in the context of sexual assault, along with a variety of other contextual aspects to the issue. He also argued that understanding systemic racism is already part of judicial training.
The amendments were supported by all major parties with the lone exception of Bloc Québécois MP Rhéal Fortin. Fortin suggested that the term "systemic racism" has unclear meaning despite its trendy nature in the modern political climate. He also claimed that this shoehorns other issues into a bill meant to discuss sexual assault, arguing "[if] we want to work on a different bill than the original one, which was for training on sexual assault, and we want something different on systemic discrimination, that’s fine and well, that can be something we could do."
MP Arif Virani, the Parliamentary Secretary to the Minister of Justice, disagreed with Fortin, claiming that the term is actually well defined in regard to political institutions and that most people know what it means. He did not provide a definition himself, however.
Speaking to the National Post, Ambrose continued to express support for the passage of the bill "without delay." “I know victims of sexual assault are thankful that MPs are working together to get this bill passed,” Ambrose said. She did not comment on the latest amendment to the bill.
The bill proposed by Ambrose has been introduced to Parliament a number of times, dying in Parliament first with the 2019 federal election and again due to Prime Minister Justin Trudeau's prorogation of Parliament, despite receiving support across party lines. The amendment on systemic racism, however, is new to the bill.
Without directly commenting on the amendment, Attorney General David Lametti's office expressed "the need to take action to address systemic racism in Canada’s justice system.”