Making Social Context Education Mandatory: Why Cultural Competency Should Matter in the Courtroom
Samantha Peters, University of Ottawa Faculty of Law
April 2020
Introduction
The courtroom is often characterized as neutral, impartial and justice seeking. As a result, the courtroom is considered a “sanitized” space of law and order where judges are assumed to make just and fair decisions. While at times this may be true, the courtroom is complex and is also a space where judges preserve the status quo and cement unfair power relations and stereotypes. This does not always go unnoticed, however. If a line is crossed in any way, there are mechanisms in place to ensure that this is recognized and addressed.
The Canadian Judicial Council is a body created to improve the quality of judicial service at the superior courts of Canada.1 When a complaint is filed, the Council has a formalized procedure in which to hear that complaint. Since 1971, the Council has referred fourteen complaints for formal investigation of a judges’ conduct.2 Most noteworthy is the investigation of Federal Court Justice Robin Camp who acquitted a man charged with the sexual assault of a young Indigenous woman who was experiencing homelessness at the time. What made this case news headline-worthy was not necessarily the judge’s finding, but because the judge asked the complainant: “Why couldn’t you just keep your knees together?” during the sexual assault trial.3 This begs the question: should judges be required to partake in mandatory yearly cultural competency training or social context education in order to provide quality judicial service?
The Ethical Principles for Judges as outlined by the Canadian Judicial Council requires judges to follow guidelines, which include: judicial independence, integrity, diligence, equality, and impartiality.4 The equality principle in particular states that, “Judges should strive to be aware of and understand differences arising from, for example, gender, race, religious conviction, culture, ethnic background, sexual orientation or disability.”5 In my opinion, such education ought to include an intersectional lens that extends to understanding the intersection of sexual assault law with society’s discourse that often participates in, and perpetuates, systems of slut shaming and victim (or survivor) blaming.
Bill C-5
On February 4, 2020, the Minister of Justice and Attorney General of Canada introduced legislation in the House of Commons to amend sections of the Judges Act and the Criminal Code to address judicial education.6 Initially introduced by former Conservative leader Rona Ambrose, Bill C-5, – an Act to amend the Judges Act and the Criminal Code – will require federally-appointed superior court judges to agree to participate in educational training on sexual assault law and social context matters.7 It would also require the Canadian Judicial Council to report on ongoing efforts for sitting judges, and would amend the Criminal Code to ensure that judges are putting their reasons on the record when they rule on sexual assault cases.8 While advocates like YWCA Canada are huge supporters of the Bill, citing startling statistics which demonstrate why we need sexual assault sensitivity training for judges,9 there are those who do not think that the Bill goes far enough.
Kim Covert in an article titled “Mind the Gap” in CBA’s National Magazine argues that Bill C-5 is aimed at the wrong target. She argues that Bill C-5 contains some worrisome elements such as applicants simply undertaking to complete sexual assault training before being appointed rather than requiring them to do so. Other concerns include whether an appointment would be suspended or reserved until the training has been completed, who would administer recognized training and how, as well as who would bear the costs of the training.10 Many of these concerns were also raised in an open letter to the Chair of Justice and Human Rights Committee at the House of Commons by the Chair of the Canadian Bar Association’s Criminal Justice Section and the Judicial Issues Subcommittee.11 There is still more to consider. Following the Ghomeshi trial, Naomi Sayers and Samantha Peters wrote an article for Huffington Post Canada about reimagining how future sexual assault cases are heard, writing:
“… we also need to consider other ways that the criminal justice system can be accountable to sexual assault survivors … We believe that creating courts dedicated to hear sexual assault cases have the potential to create a “safer” space for survivors. As part of these courts, judges would also be required to undergo social context education about sexual assault law and its meeting with race, class, gender and other intersecting and/or interlocking marginalizations. In particular, judges should be familiar with the particular circumstances of sex workers and other criminalized populations who are survivors of sexualized violence. Such education would also allow for critical examination of mainstream discourse that re-victimizes survivors. The education would also unpack the hidden patriarchy and misogyny in the context of gender-based violence. These courts would operate on a trauma-informed foundation, understanding the complexities in survivors’ reasons for inconsistencies in their testimony.” [emphasis added]12
Ultimately, they proposed a special court dedicated to hearing sexual assault cases as a future consideration.
We cannot separate systemic racism and colonialism from understanding sexual violence and misogyny. Echoing comments made by the Women’s Legal Education and Action Fund (“LEAF”), Bill C-5 must be clear in “Defining “social context” as factors contributing to inequality in Canadian society, including colonialism, systemic racism, ableism, homophobia, and transphobia” in order to be effective.13 Accordingly, for the purposes of this paper, I will be focusing on the way in which race, law and power interact and why social context training must be grounded in critical anti-racism theory through an intersectional framework. This is because the courtroom sometimes achieves its “sanitized” space via a colonial tradition which translates into the criminalization and over-incarceration of Black and Indigenous People at increasing rates.
Thus, judicial education on cultural competency can be a crucial tool in addressing this injustice and would also play an important role in strengthening the judicial system. Although all types of education are not necessarily appropriate for judges given the obvious challenges of ensuring impartiality and independence, the lack of social context education – that is, understanding the diversity of people and how the law impacts marginalized and oppressed groups in the courtroom – not only reflects poorly on the quality of judicial service by the individual judge, but it also reflects poorly on judges generally. At large, it undermines public confidence in the administration of justice as a whole.
Grounding my analysis in critical race theory, I will begin by exploring the politics of space/spatial theory. I will proceed by looking at the Ethical Principles for Judges in more detail and then will unpack R.D.S. v Her Majesty the Queen – a seminal case concerning reasonable apprehension of bias – in order to demonstrate how this case also reveals the need for social context education.14 I will follow by juxtaposing my position with the argument of judicial independence. I will conclude by discussing the potential dangers of colour-blindness in order to illuminate how judicial education on cultural competency can in fact assist the National Judicial Institute’s mandate of “building better justice”.15
Thus, I question, how can a judge sentence a Black woman for defending herself without understanding misogynoir?16 How can a judge sentence an Indigenous woman without understanding the history and realities of colonization or the importance of a Gladue Report? Likewise, how can a judge hear a case concerning a queer or trans* Black, Indigenous or Person of Colour (“BIPOC”) without understanding intersectionality, critical race theory or systemic oppression? These are some the questions that I will touch upon in order to establish that the lack of social context education, particularly in criminal proceedings, is a judicial ethical dilemma that impacts vulnerable and criminalized women and femmes17 most.
Why Critical Race Theory Matters
Critical race theory is a theoretical framework that examines the intersection of race, law and power. Although the inception of this theory is not clear, it is often argued that awareness of critical race theory as a movement began near after the civil rights movement in the United States of America.18 The movement was in opposition to the dominant understanding of race, racism and the law at that time and sought to challenge it through critical legal thinking. 19
Most critical race scholars founded their definition of the theory on the basis that we do not live in a post-racial society. As such, there is a lot of skepticism amongst critical race scholars toward dominant legal claims of “neutrality, objectivity, color blindness, and meritocracy”.20 This is because we cannot honestly argue that the law is colour-blind when Black and Indigenous People are overrepresented in prisons, for instance. We also cannot truthfully posit that the law is neutral, if judges can slut shame the complainant while not also addressing rape culture, misogyny (including misogynoir) or patriarchy in their oral reasons.
KimberlĂ© Williams Crenshaw, Harvard Law graduate as well as professor at both Columbia Law School and the University of California School of Law (Los Angeles), has been a leader in the academy for introducing intersectionality into feminist theory and for her contributions to critical race theory. In particular, she has fervently commented on the dangers of excluding race from discussions about the law arguing, “This belief in color-blindness and equal process, however, would make no sense at all in a society in which identifiable groups had actually been treated differently historically and in which the effects of this difference in treatment continued in the present”.21 For Crenshaw, ignoring the historical “oppositional dualities” and the present dualities erases the fact that white images in the law are constantly and consistently seen as “law-abiding” while Black images are seen as “criminal”.22 Consequently, it is clear that in cases like Krystal Wilson and others, systemic racism cannot be excluded from discussions about the law.
Critical race theory is also fundamentally intersectional. This means that racism in the law intersects, and in some cases interlocks, with other social constructions such as: gender, sex, ability, age, ethnicity, religion or sexuality. To be clear, intersectionality reveals how multiple identities have both advantages and disadvantages, making one identity more salient than the other in different circumstances. On the other hand, interlocking identities speaks to the way in which particular identities can never be separated. This is particularly so for race and gender.
Harmful stereotypes such as the “Angry Black Woman” often lead to the over-policing and criminalization of Black women and femmes, Indigenous women and two-spirit people as well as trans* people of colour. As a result, discovering ways in which systemic racism can be addressed is the ultimate goal for critical legal scholars. Legislative reform, education and hiring BIPOC women and femmes in positions of law making and policy-making power, are some ways in which to attend to systemic racism and misogyny in the law. Accordingly, critical race theory lays the groundwork for understanding how courtrooms operate.
Conceptualizing Space
Examining what physical space means informs one’s understanding of who can enter a space, what knowledge and language can be contained in a space, how spaces are sites of power and resistance, as well as how spaces can be sites of oppression. Sherene Razack begins her analysis by claiming that the first historic discussion of race, space and the law centres on the legal doctrine of terra nullius, which is the concept that land belongs to no one.23 This term, according to Razack, is in fact problematic because it erases Indigenous People as being the first inhabitants in Canada; it denies colonialism and also touts Europeans as entitled to Canadian lands by law.24
Razack then goes on to organize her analysis by discussing the following: space as a social product, space and interlocking systems of oppression, the body in space as well as gender, transgression, and journeys through space. Accordingly, spaces, in Razack’s view, are sites of oppression because although different people occupy spaces, marginalized and oppressed people are affected most.25 Moreover, spaces are social products too since those who occupy space or seek to control them also characterize them.26 Thus bodies in spaces are complex. While privileged people are often heralded in spaces, oppressed bodies are either made invisible or are hyper-surveillanced.27 This is connected to her argument that spaces create identities which also speaks to how spaces create stereotypes. For instance, if someone lives in Toronto’s Regent Park, that space creates a particular identity (they are hyper-surveillanced) compared to someone who lives in Toronto’s Liberty Village (they are hidden). Her analysis is meant to reveal, “… how spacial divisions by race come into existence and are sustained”; journeys and transgressions through spaces impose particular identities onto people.28
Although spaces are dynamic, they are often assumed to be “innocent” nonetheless. According to Razack, this is dangerous; “to treat space this way is to remain on a purely descriptive level that does not show the dialectical relationship between spaces and bodies”.29 That is to say, to assume that a space is “innocent” and “safe” is to deny the fact that people impact how spaces are produced and reproduced. She underscores this point by citing Henri Lefebvre, who argues that space produces bodies and bodies are produced by spaces.30 As a result, spaces are gendered, racialized, classed and many other social constructions: spaces cannot be neutral.
Interrogating the Courtroom Space
The courtroom is therefore a space that is also not neutral. Awol Allo illuminates the complexity of the courtroom and how it often operates in paradoxical ways. Analyzing the courtroom space, he posits, “Far from being the neutral and apolitical space of adjudication, the space of the courtroom is conceived as material and abstract, singular and multiple, relational and absolute, real and imagined, enabled and enabling, and produced and producing”.31 Thus, the courtroom often acts in opposition and is rarely objective. While the courtroom space is perceived as neutral in that often, white judges (who are seen as “neutral”) are presiding over a case are administering the law, it is not neutral because the law is never applied the same when the accused person or defendant is racialized (perceived as “deviant”), especially when the case concerns a criminal matter. Therefore, in order to regulate or “sanitize” the courtroom, racialized bodies are interrogated and sentenced without critically acknowledging the intersection of race, space and the law.
Defining Cultural Competency
Cultural competency is the ability to understand someone who is different from what is considered the “norm”.32 Ritu Bhasin adds that culture competency is not about being “culture-blind”, but instead it is about making active steps toward understanding the ‘Other’.33 This means that instead of ignoring differences, one should posses a cultural lens, ask questions, be self-reflective and adjust one’s behavior accordingly.34
Social Context Education for Judges
Social context education is a sub-category of cultural competency. Placing its definition squarely within the context of judges, social context education recognizes that racialized accused persons are impacted differently in the courtroom. As a result, it requires judges to pursue education in order to fulfill their judicial responsibilities. Professor Rosemary Cairns-Way has defined social context education as “the social backdrop” of the issues and reasons why certain litigants enter the courtroom.35 Ultimately, social context education is a call for judges to recognize Canada’s diversity and how the law intersects; at its core is “change, diversity, equality, discretion, perspective and fairness”.36 Indeed, social context education demonstrates a commitment toward the equality principle that is required of judges.
Richard F. Devlin furthers Cairns-Way’s definition of social context education by discussing the value of including the voices of legal theorists in critical race theory, feminist jurisprudence and even First Nations jurisprudence to assist in understanding Canadian judicial function. In the context of feminist jurisprudence, social context education would require judges to “reflect upon whether they subconsciously rely on double standards when dealing with women”.37 Such education would assist in deterring from remarks or commentary that reek of slut shaming. In the context of First Nations jurisprudence, this would require judges to acknowledge, “everyday normalized racism of police, judicial and prison practices that incarcerate huge proportions of the First Nations communities”.38 This education would place significant weight on understanding the value of Gladue Reports. Finally, integrating critical race theory into social context education would include being aware that we do not live in a post-racial society, that colour-blindness is a problem and that furthermore, “whiteness is seen as part of the problem, to the extent that those who are identified as white are not only not discriminated against but are actually overprivileged”.39 This would indeed acknowledge that the practice of carding and street checks, for instance, is racist and is less about safety, and more about who is considered suspicious or dangerous based on the colour of their skin. Still, cultural competency is not about being all-knowing. This is because no one can ever be fully “competent” in understanding culture since it is a dynamic multifaceted concept that each person might feel and experience differently. Nevertheless, having some competency of culture is necessary for judges.
Ethical Principles for Judges
Judges have distinct roles and responsibilities compared to that of lawyers.40 While lawyers must abide by the Law Society of Ontario’s Rules of Professional Conduct, judges must adhere to the Canadian Judicial Council’s five core principles: impartiality, integrity, diligence, equality and judicial independence.41 The purpose of these principles is to provide ethical guidance for judges.
Impartiality
Impartiality means that the judge should remain neutral with respect to their decision-making process and that their ultimate decision should be assessed from the perspective of a “reasonable, fair minded and informed person”.42 This principle is meant to maintain and enhance confidence in the impartiality of the judiciary both in and outside of the courtroom.43 Thus, judicial demeanour, civic and charitable activity, political activity and conflict of interest must all be taken into consideration.44
Integrity
The integrity principle is designed to ensure that a judge’s conduct is in the view of a reasonable, fair minded and informed person.45 Thus, judges are required to strive toward conducting themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.46 The rule therefore prohibits any judicial conduct that would negatively impact public confidence in the judicial system.47
Diligence
Judges must be diligent in performing their duties.48 This means that judges should deliver judgments promptly.49 Moreover, the judge should take reasonable steps to maintain and enhance the qualities necessary for judicial office.50 However, the enforceability of this principle is limited as it is dependent on the burden of work and resources that may be available to the judge at the time.51
Equality
Judges must conduct themselves in a manner that is committed to equality of the law.52 The equality principle, which promotes anti-discrimination, extends to all persons including court personnel and witnesses.53 As a result, judges cannot make inappropriate comments that are grounded in sexism or racism, nor can a judge engage in inappropriate conduct arising from being unfamiliar with another person’s culture.54 Thus, to ensure that the equality principle is upheld, judges may seek education to be aware of and understand the differences that arise from race, gender, religious conviction, culture and so forth.55 However, education is limited since judges must also remain independent and impartial.56 They must be impartial in that they are “reasonable” and independent in that they are uninfluenced.57
Judicial Independence
Judicial independence is the bedrock of impartial justice and also a constitutional right of all Canadian citizens.58 As a result, judges must demonstrate this principle in both its individual and institutional capacity.59 Judges must therefore reject any attempts to influence their decision and uphold any measures to safeguard the independence of the judiciary.60 Furthermore, judges should be firm defenders of their own independence. In order to maintain public’s trust in the judiciary, judges must take advantage of pedagogical opportunities to help the public understand the importance of judicial independence.61
Ultimately these five principles prohibit a judge from acting in a manner that will lower public trust or upset those involved in the trial due to improper judicial conduct. For the individual judge, the ethical dilemma is that they must always balance the requirement of these principles with its exceptions, while also maintaining public confidence. And because judges are hyper-scrutinized, a breach of any of these principles by an individual judge can impact how Canadians view the administration of justice generally.
The ethical principles required for judges are therefore complex: judges need to be careful not to cross any ethical boundaries. While the principles guarantee that judges will be fair in every way, the rules are also arbitrary. For instance, the equality principle maintains that judges must take it upon themselves to be educated about cultural difference, but it also says that judges must pursue education with discretion and caution. So what education is off limits and what kind of education is permissible? Do we draw the line at feminist legal studies? Critical race theory? Indigenous jurisprudence?
“Reasonable Apprehension of Bias” in R.D.S. v Her Majesty the Queen
R.D.S. is often cited as an instructive case on judicial ethical issues in the context of the equality principle. The case concerned a Black boy who interfered in the arrest of another Black boy by a white officer.62 The accused was charged with “assaulting a police officer, assaulting a police officer with the intention of preventing an arrest, and resisting a police officer in the lawful execution of his duty” as a result.63 Judge Sparks weighed the evidence and decided to acquit the accused. In her decision, the judge stated that, “police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that would indicate a “state of mind that is questionable””.64 The Crown appealed this decision on the grounds that the Black woman judge had a reasonable apprehension of bias.65 The appeal was granted and a new trial was ordered.66 In the new trial, Judge Sparks’ decision was restored and the claim of reasonable apprehension of bias was dismissed.67
It is in my view that this case also speaks to the extent to which cultural competency, and by extension social context education, can be applied in the courtroom. In my opinion, the judge’s remarks fit directly within the equality principle. In this case, the judge was not influenced by the “official story” which stereotypes Black people as aggressive or dangerous.68 Instead, she remained impartial and looked at the totality of the circumstances in writing her decision, which was attune to the heightened climate of racism in Nova Scotia in light of the Donald Marshall Inquiry.69 This case reveals that social context education or “contextualized judging” is imperative in criminal cases that involve a racialized person.
The Majority
Justices L’Hereux-DubĂ© and McLachlin wrote for the majority. They argued that although an appeal should be allowed, social context in judicial decision-making is important.70 According to the Justices, “… differing experiences of judges assist them in their decision-making process and will be reflected in their judgments, so long as those experience are relevant to the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just determination of the cases based on the facts in evidence, We find that on the basis of these principles, there is no reasonable apprehension of bias in the case at bar”.71 Reasonable apprehension of bias by definition asks whether a reasonably informed person would conclude that the decision maker would consciously or unconsciously decide the case unfairly.72 They concluded, upon applying the facts to the case, that Judge Sparks’ oral reasons were simply engaging in a process of “contextualized judging” and rightfully flagged the racial dynamics of the case.73 Because the case was “racially charged” from the start, it would have been impossible for her not to include discussions of race in her reasoning. The problem with this case is that reasonable apprehension of bias was used to challenge the fact that race does matter. Would reasonable apprehension of bias have been challenged if the case concerned a judge familiar with tax law who discussed his liberal or even conservative perspective on tax law in his oral reasoning?
The Dissent
Aside from Justices L’Hereux-DubĂ© and McLachlin, the Supreme Court remained loyal to colour blindness;74 “… they pushed and pulled at whatever argument they were offered to make it fit into the small space of colour blindness”.75 Per Lamer C.J. and Sopinka and Major JJ, a fair trial must be free from bias, and without statistics submitted as evidence, racism cannot be raised as an issue. It was further argued, “life experience is not a substitute for evidence”.76 Sherene Razack speaks to this writing that “people of colour have no monopoly on racial stereotyping”.77 As a result, the colour blindness script was maintained to ignore the realities of systemic discrimination. Razack questions this hesitation to name racism, asking: “is this unease that comes from knowing that once race is taken into account, and the stereotypes come tumbling down, what is left is the awesome fact of white supremacy?”78
This case, and the Ethical Principles for Judges, is at its core about crossing the line. In this case, the majority felt that the line of reasonable apprehension of bias was not crossed. The dissent argued otherwise. Moreover, the impartiality and judicial independence principle were used to remind Judge Sparks that she could not cross the line, while the equality principle told her that a degree of subjectivity is required so that judges are neither discriminatory nor stereotypical. Razack concludes that, “The double legacy of R.D.S. for me is that while it offers a small ray of light that race does count, it also confirmed that to make it count more often, we will need something more than a scientific study or two on the operation of racism in Canada.79 For me, this case demonstrated that although race should matter, acknowledging race is considered troublesome. Further, it pushes for a colour-blindness approach to the detriment of racialized accused persons.
Judicial Independence: Shield or Sword?
The judicial independence and equality principle are often at odds. While it is necessary to be familiar with the issues that affect racialized groups, it is also argued that judges must remain impartial and uninfluenced by personal interests. That is to say, their decisions must be based solely on fact and law. For Former Chief Justice Lamer, judicial independence is vital not only to ensure public trust, but because it preserves the rule of law.80 In the context of determining innocence or guilt, Lamer points to the Charter of Rights and Freedoms.81 He posits that judicial independence is further reflected in section 11(d), which guarantees the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.82 Accordingly, a fair public hearing would require an independent judiciary in order to objectively determine a person’s innocence or guilt.83
Judicial independence, thus, also brings up questions concerning accountability. Social context education, when discussed in the context of judicial accountability, poses some concerns for the former Chief Justice. According to Lamer, “social context education for the judiciary is designed to make judges both more aware of and better able to respond to the many social, cultural, economic and other differences that exist in the highly pluralistic society in which we perform our important duties … Its goal, like that of other forms of judicial education, is to make us all better judges”.84 However, he argues, social context education should not be mandatory for all judges and non-judges should not design its curriculum, because it “would threaten judicial independence in a fundamental way”.85 Social context education is therefore a threat to judicial independence and impartiality for former Chief Justice Lamer. Consequently, such education would have an adverse effect on public perception of the judiciary. Ultimately, his arguments seem to advance that we must have faith that judges were appointed because they know how to do their job. This is not enough; although judicial education may not be the issue, humanizing judicial education through social context education is.
In retort, Allan Hutchinson highlights the limits of the then Chief Justice’s arguments on judicial independence. According to Hutchinson, judicial independence is not “antithetical” to judicial accountability and in fact, compulsory social context education could assist in bettering accountability.86 Thus, if judicial independence really does involve respect for public confidence, then any steps toward ensuring that would, by virtue, increase judicial accountability.
Resisting education in the name of judicial independence is dangerous. Hutchinson maintains that contrary to the former Chief Justice’s arguments; judicial independence requires education in order to sustain judicial accountability. Undoubtedly, this would require a process of learning, unlearning and relearning; “If independence or neutrality is to mean anything, it must mean a recognition of one’s own predispositions and a constant willingness to re-interrogate them.”87 Archaic applications of the law can therefore easily occur if judges are not open to learning other ways of understanding the law; social context education breathes life into the law so that judges can apply the law with context in the courtroom. Hutchinson concludes that with judicial power comes accountability and responsibility, and “democracy is ill-served when the theory of the Rule of Law is converted into the practice of the rule of lawyers.”88 Therefore, social context education would indeed bring the courtroom into the 21st century. Contrary to the arguments espoused by Lamer, social context education should not be seen as a threat to “protecting core values”.
Why Cultural Competency Should Matter in the Courtroom
The lack of cultural competency in the courtroom by judges not only contributes to a systemic legacy of trauma and harm, but it contributes to the wrongful accused, wrongful convictions, harsher sentences and ultimately the over-incarceration of Black and Indigenous People in the criminal justice system. Social context education then would assist the judge in understanding the historical, social and systemic factors that contribute to that person’s charge. Knowledge of the intersectionality of the law and the systemic discrimination of particular populations would also reveal that strategic colour-blindness does more harm than good.
The number of incarcerated Black women appears to be rising quickly. According to the Office of the Correctional Investigator’s “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries Final Report”, in 2011-2012, Black women inmates represented 9.12% of the incarcerated women population.89 Black women’s experiences in the prison system is also important to consider – behaviours, actions or spoken communication of all Black inmates appear to be assessed through a ‘gang lens’, Black inmates do not have consistent access to appropriate hygiene products intended for their hair/skin type through canteen causing many to experience severe hair loss and dry skin issues and Black inmates are released later in their sentence (lower parole grant rates) and are less likely to be granted temporary absences. Thus, social context education for judges would play a significant role in attending to these disproportionate statistics and how Black women and femmes are treated in the courtroom space.
Sentencing judges can therefore play a vital role in the criminal justice system if they agree to social context education. Judicial education on race, power and the law would ensure that their decisions do not contribute to systemic discrimination and racist practice in the courtroom. This is not to say that social context education would mean that decades of harm would be undone, but it does mean that there can be more justice in an unjust system. R v Ipeelee discusses the importance of judges taking judicial notice, writing: “Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.”90 Judges therefore have an ethical duty to ensure that the justice system is functional.
The obvious counter argument to social context education is a dangerous one. Colour-blindness is dangerous because it is used to put everyone on an equal playing field even though racialized people nevertheless enter and leave the courtroom on an uneven playing field. Social context education would ensure that every person truly receives a fair trial. Earlier I questioned: how can a judge sentence a Black woman for defending herself without understanding misogynoir? How can a judge sentence an Indigenous woman without understanding the history and realities of colonization or the importance of a Gladue Report? Likewise, how can a judge hear a case concerning a queer or trans* Black, Indigenous or Person of Colour (“BIPOC”) without understanding intersectionality, critical race theory or systemic oppression? If judges were required to take mandatory yearly cultural competency training, not only would they be able to be mindful when sentencing, but also it would demonstrate judicial accountability toward vulnerable, criminalized and marginalized populations.
Colour-blindness falsely tells us that the current system is fine, when it is not. By upholding this view, everything will stay the same: Black and Indigenous people, whether factually guilty or not, will grow up and die in the prison system. Thus, to not care about cultural competency is to bring the administration of justice into disrepute. To not care about cultural competency would also be breaching the equality principle that is required of judges.
Other Recommendations: Judges and Juries
While not a focus of this paper, cultural competency in the courtroom goes beyond social context education. It is also important to note that the lack of judicial diversity and the lack of jury diversity are also judicial ethical dilemmas that must be considered. Diverse opinions can ensure that the voices of all Canadians are reflected in the decision-making processes, while the lack of diversity preserves the status quo.
Because 98% of judges are white, major cases are often decided without the inclusion of those impacted by it.91 In a Toronto Star article written in 2012 about the lack of Aboriginal representation at the Supreme Court, Lorne Neudorf wrote that “courts frequently decide cases of special significance to aboriginal communities, such as those at the Supreme Court over the past few years on the sentencing of aboriginal offenders, the interpretation of treaty rights, and land claims.”92 The issue here is that equality must move beyond lip service and should also be reflected in positions of power; diversity of the bench matters. Yes, gender diversity is important, but in the context of criminal law cases, we need more Indigenous women judges and more Black women judges since it is wildly known that our criminal justice system is rife with racial discrimination and misogyny.
A racially diverse jury can also safeguard cultural competency in the courtroom. In R v Kokopenace, it was argued that:
The right to a representative jury roll is thus not an absolute right, but an inherently qualified one. The right does however require the state to use a jury roll process that provides a platform for the selection of a petit jury that serves the objectives of impartiality and enhancing public confidence in the criminal justice system. Essential to achieving these objectives is that the distinctive perspectives that make up the community are provided a fair opportunity to be included in the jury roll, and to be brought to the jury function. In this way the jury can serve as the conscience of the community as the representativeness guarantee requires.93
However, in a 5-2 decision written by Justice Moldaver, the Supreme Court ruled otherwise. The Supreme Court of Canada held that an accused’s right to a representative jury is “not the appropriate mechanism to indirectly address the historic and current grievances of First Nations.”94 But what is the appropriate mechanism for repairing a criminal justice system that is permeated with discrimination? Should a jury that does not understand the unique circumstances of an Indigenous offender be allowed to make a life sentencing decision on their behalf? Whose public confidence are we really trying to restore here?
Conclusion
Cultural competency training should be mandatory for all judges in order to provide quality judicial service to everyone that enters the courtroom, especially queer and trans* BIPOC women and femmes. If we do not require judges to complete mandatory yearly social context education, not only will it remain a judicial ethical dilemma, but it will also tarnish public perception of individual judges and ultimately diminish public trust in the administration of justice. If judges are truly committed to “bettering justice”, then the ethical principles for judges need to be put into practice, and the failure to do so must have consequences. Judges should not get off the hook for making racist and misogynist remarks in the courtroom.95
The only fourteen cases of judicial conduct that have been referred for review does not reveal an unflawed system, but instead reveals that judges are seldom penalized for their actions. Accordingly, it is not enough to have guidelines if they are not strictly enforced. Judges hold a unique position of power. However, with little diversity on the judiciary, resistance to having a representative jury and with judicial independence used as a shield to enforcing the equality principle, there are serious risks for Black and Indigenous women and femmes entering the courtroom. Requiring judges to partake in social context education means that the judiciary recognizes cultural competency’s value in the courtroom, and it will also establish that it is in fact a professional responsibility to undergo such training.
Bibliography
JURISPRUDENCE
R v Ipeelee, 2012 SCC 13, 2012 1 SCR 433.
R v Kokopenace, 2013 ONCA 389, 299 CCC (3d) 48.
R v Kokopenace, 2015 SCC 28, 2015 2 SCR 398.
R v S (RD), 1997 3 SCR 484, 1997 CanLII 324 (SCC).
SECONDARY MATERIAL: BOOKS
Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2nd ed (Markham: LexisNexis Canada Inc, 2012).
Awol Allo, “The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial” in Awol Allo ed, The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial (Farnham, QB: Ashgate Publishing Ltd, 2015).
Charles R Lawrence et al, “Introduction” in Mari J Matsuda et al, eds, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Colorado: Westview Press, 1993).
KimberlĂ© Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Anti-discrimination Law” in KimberlĂ© Crenshaw et al, eds, Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995).
Sherene Razack, “R.D.S. v. Her Majesty the Queen: A Case about Home” in Enakshi Dua & Angela Robertson, eds, Scratching the Surface: Canadian anti-racist feminist thought (Toronto: Women’s Press, 1999).
Sherene H Razack, “When Place Becomes Race” in Sherene H Razack, ed, Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002).
SECONDARY MATERIAL: ARTICLES
Allan C Hutchinson, “Towards judicial accountability—are the excuses getting lamer?”, online: (1996) 45 UNBLJ 3 <http://www.unb.ca/fredericton/law/journal/index.html>.
Antonio Lamer, “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change”, online: (1996) 45 UNBLJ 3 <http://www.unb.ca/fredericton/law/journal/index.html>.
Richard F Devlin, “Jurisprudence For Judges: Why Legal Theory Matters For Social Context Education”, (2001) 27 Queen’s LJ 161.
SECONDARY MATERIAL: NEWSPAPERS
Brian Platt, “Aiming for all-party support, Liberals table bill on judges' sexual assault training first introduced by Rona Ambrose”, National Post (4 February 2020), online: National Post <https://nationalpost.com/news/politics/aiming-for-all-party-support-liberals-table-bill-on-judges-sexual-assault-training-first-introduced-by-rona-ambrose>.
Catharine Tunney, “Proposed bill on sexual assault awareness training for judges 'above politics,' Ambrose says”, CBC News Canada (4 February 2020), online: CBC News <https://www.cbc.ca/news/politics/ambrose-lametti-judge-awareness-training-1.5451117>.
Jim Rankin, Patty Winsa & Hidy Ng, “Unequal justice: Aboriginal and black inmates disproportionately fill Ontario jails”, The Toronto Star (1 March 2013), online: The Toronto Star <http://www.thestar.com/news/insight/2013/03/01/unequal_justice_aboriginal_and_black_inmates_disproportionately_fill_ontario_jails.html>.
Kim Covert, “Mind the Gap”, CBA/ABC National (21 April 2020), online: CBA National <https://www.nationalmagazine.ca/en-ca/articles/cba-influence/submissions/2020/mind-the-gap>.
Kirk Makin, “Complaint that judge was racist dismissed”, The Globe and Mail (29 October 2002), online: The Globe and Mail <http://www.theglobeandmail.com/news/national/complaint-that-judge-was-racist-dismissed/article4140070/>.
Kirk Makin, “Of 100 new federally appointed judges 98 are white, Globe finds”, The Globe and Mail (17 April 2012), online: The Globe and Mail <http://www.theglobeandmail.com/news/politics/of-100-new-federally-appointed-judges-98-are-white-globe-finds/article4101504/>.
Lorne Neudorf, “Aboriginal representation at the Supreme Court”, The Toronto Star (9 June 2012), online: The Toronto Star <http://www.thestar.com/opinion/editorialopinion/2012/06/09/aboriginal_representation_at_the_supreme_court.html>.
Naomi Sayers and Samantha Peters, “The Ghomeshi Verdict: Re-imagining How Future Sexual Assault Cases Are Heard”, Huffington Post Canada (25 March 2016), online: Huffington Post Canada <https://www.huffpost.com/entry/the-ghomeshi-verdict-reim_b_9544430>.
Tanya Talaga, “‘Systemic racism’ toward natives in justice system, Frank Iacobucci finds”, The Toronto Star (26 February 2013), online: The Toronto Star <http://www.thestar.com/news/canada/2013/02/26/systemic_racism_toward_natives_in_justice_system_frank_iacobucci_finds.html>.
The Canadian Press, “Robin Camp decision in ‘keep your knees together’ case referred to review panel”, CBC News Canada (21 December 2015), online: CBC News <http://www.cbc.ca/news/canada/federal-court-judge-robin-camp-rape-trial-1.3375509>.
SECONDARY MATERIAL: WEBSITES
“A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries Final Report”
2014, online: Office of the Correctional Investigator <https://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20131126-eng.aspx#toc7>.
“About the NJI”, (2014), online: National Judicial Institute <https://www.nji-inm.ca/index.cfm/about/about-the-nji/>.
“Ethical Principles for Judges”, (2004), online: Canadian Judicial Council <https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf>.
“Inquiry Committee Decisions”, 2016, online: Canadian Judicial Council <https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inquiry_en.asp>.
“Judicial training in sexual assault law and social context”, 2020, online: Department of Justice of Canada <https://www.justice.gc.ca/eng/csj-sjc/pl/jt-fj/index.html>.
Katheryn Pentz, Q.C. and John D. Stefaniuk, “Bill C-5, Judges Act and Criminal Code amendments”, The Canadian Bar Association (20 March 2020), online: The Canadian Bar Association <https://www.cba.org/CMSPages/GetFile.aspx?guid=68f1aad4-935d-4e0e-99f8-895a1046a6de>.
“LEAF appears before Standing Committee to discuss Bill C-5 on judicial education”, 2020, online: Women’s Legal Education and Action Fund < https://www.leaf.ca/billc5/>.
“Mandate and Powers”, 2016, online: Canadian Judicial Council <https://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_mandate_en.asp>.
Ritu Bhasin, “Cultural Competence: An essential skill for success an increasingly diverse world”, online: Practice Pro <http://www.practicepro.ca>.
“Take Action: Pass Bill C-5 - mandatory sexual assault training for judges”, 2020, online: YWCA Canada <https://ywcacanada.ca/takeaction-billc5/>.
Endnotes
13 “LEAF appears before Standing Committee to discuss Bill C-5 on judicial education”, 2020, online: Women’s Legal Education and Action Fund < https://www.leaf.ca/billc5/>.
14 R v S (RD), [1997] 3 SCR 484, 1997 CanLII 324 (SCC) [R.D.S.].
17 According to Trans Student Educational Resources, “Femme: An identity or presentation that leans towards femininity. Femme can be an adjective (he’s a femme boy), a verb (she feels better when she “femmes up”), or a noun (they’re a femme). Although commonly associated with feminine lesbian/queer women, it’s used by many to describe a distinct gender identity and/or expression, and does not necessarily imply that one also identifies as a woman or not.” To be clear, femme includes non-binary and gender non-conforming folks and does not only apply to cisgender women. See: https://www.transstudent.org/definitions
18 Charles R Lawrence et al, “Introduction” in Mari J Matsuda et al, eds, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Colorado: Westview Press, 1993) 1 at 3.
21 KimberlĂ© Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Anti-discrimination Law” in KimberlĂ© Crenshaw et al, eds, Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995) 103 at 106.
23 Sherene H Razack, “When Place Becomes Race” in Sherene H Razack, ed, Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) 1 at 3.
31 Awol Allo, “The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial” in Awol Allo ed, The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial (Farnham, QB: Ashgate Publishing Ltd, 2015) 1 at 9.
32 Ritu Bhasin, “Cultural Competence: An essential skill for success an increasingly diverse world”, online: Practice Pro <http://www.practicepro.ca>.
35 Richard F Devlin, “Jurisprudence For Judges: Why Legal Theory Matters For Social Context Education”, (2001) 27 Queen’s LJ 161 at 163.
40 Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2nd ed (Markham: LexisNexis Canada Inc, 2012) at 561.
62 Sherene Razack, “R.D.S. v. Her Majesty the Queen: A Case about Home” in Enakshi Dua & Angela Robertson, eds, Scratching the Surface: Canadian anti-racist feminist thought (Toronto: Women’s Press, 1999) 281 at 281.
70 R.D.S., supra note 6 at para 29.
76 R.D.S., supra note 6 at para 13-14.
80 Antonio Lamer, “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change”, online: (1996) 45 UNBLJ 3 at p 2 <http://www.unb.ca/fredericton/law/journal/index.html>.
93 R v Kokopenace, 2013 ONCA 389, at para 31, 299 CCC (3d) 48.
94 R v Kokopenace, 2015 SCC 28, at para 140, 2015 2 SCR 398.