The challenge of judicial education
The passage of Bill C-233 through third reading in the Senate on April 19th offers hope to survivors of intimate partner violence and their children, while also raising some questions about exactly how it will be implemented.
While the Bill has two distinct components – the use of electronic monitoring in intimate partner violence (IPV) cases and judicial education about IPV – this article looks only at the judicial education provisions.
We have the tireless work of Jennifer Kagan-Viater to thank for this Bill. She is the courageous mother of four-year-old Keira Kagan who, on February 9, 2020, died while in her father’s care in a manner that Ontario’s Domestic Violence Death Review Committee found to be “consistent” with intimate-partner-violence related father-child murder-suicides.
Kagan-Viater raised the issue of the abuse she was subjected to by her husband repeatedly throughout her family law case, as she sought to have his contact with Keira limited out of concern for her daughter’s safety. However, Keira’s father was, again and again, given extensive and unsupervised parenting time, despite considerable evidence of serious abuse; particularly coercive control. At least one judge acknowledged the abuse but said it was not relevant to parenting.
Since Keira’s death, Kagan-Viater has called for judicial education on intimate partner violence, which led to the introduction of Bill C-233 last year.
Independence vs education
Known as “Keira’s Law,” the provisions related to judicial education expand revisions made to the Judges Act in 2021. Those changes called for the Canadian Judicial Council (CJC) to establish courses for judges on the topic of sexual assault. Now, those courses are to also address intimate partner violence through, in the words of the Bill, “seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination.”
As always with new or revised legislation, the devil will be in the details: How soon will the CJC move to establish these seminars? How will judges be encouraged to attend? How will the content be developed and delivered, and by whom? Will there be any kind of evaluation process to assess what is actually learned and whether it is applied?
An immediate concern is that the authority provided to the CJC is permissive: Section 60(2) states that “the Council may” establish these seminars. It does not require it to, and it does not state that participation will be mandatory.
Judicial independence is a fundamental and critically important principle of the Canadian legal system. Notwithstanding that importance, this separation of power, and a fear that certain kinds of education might create bias in the judiciary, has historically proven to be a roadblock to much-needed judicial education, especially on topics like gender-based violence and other “social issues.”
It is time to set that fear aside in favour of ensuring that judges – especially those in family court — have the knowledge they need to correctly evaluate the evidence provided to them and make decisions that reflect the serious safety concerns that arise in many IPV cases, perhaps especially those involving coercive control.
This Bill creates that opportunity.
IPV a serious problem
I say this based on my more than 25 years working as a lawyer in the area of gender-based violence; in particular, intimate partner violence. IPV is a well-established reality in Canada and around the world. Recent reports and recommendations from the CKW Inquest in Ontario and the Mass Casualty Commission in Nova Scotia clearly set out the insidiousness of the abuse to which too many women are subjected by their partner. Both have called on governments to declare it an epidemic.
Regular reports from Ontario’s Domestic Violence Death Review Committee over the past 20 years recommend education for judges and better communication between the criminal and family courts.
Research tells us abuse continues after separation, sometimes for years; children are often placed in the middle by the abuser; partner abuse has a significant impact on children and on the abuser’s appropriateness to parent; survivors seldom lie about having been abused – if anything, they downplay the seriousness of the abuse.
Recent changes to the Divorce Act and, in Ontario, the Children’s Law Reform Act, recognize these realities and offer the legal framework to support safer family court outcomes for women with children who flee abuse. It’s the perfect time to ensure that those who interpret these laws have a full understanding of the violence that occurs in too many Canadian homes.
As Jennifer Kagan says:
“Keira’s Law is an important step towards protecting women and children in situations of intimate partner violence. It’s about time that the courts treated IPV with the seriousness that it deserves. Keira was failed by the court system. Had the judge on her case had education and training on domestic violence, it would have made a considerable difference for Keira. We hope that this piece of legislation will save the lives of other children.”
This article was originally published by LAW360 Canada.
