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Cromwell worries judicial gaffes won’t be cured through education

Thursday, September 29, 2016 @ 8:00 PM | By Cristin Schmitz

Former Supreme Court Justice Thomas Cromwell says he’s not convinced that mandatory judicial education can prevent the blunders that get some judges into trouble in sexual assault trials.

The ex-Dalhousie University law professor, who retired Sept. 1 after a highly successful eight-year run at the top court, said he questions, based on his own observations at law school and elsewhere, whether mandatory education works.

“Look at all of the students in Czechoslovakia, and Slovakia, and Hungary, that had to take Russian in high school — you can’t find anybody there that speaks Russian,” he told The Lawyers Weekly in an exit interview in his Ottawa chambers. “So whilst I understand the desire to make sure that all judges have not only the skills, but the knowledge, to discharge their functions, I’m not 100 per cent sold that mandatory education is necessarily going to achieve that education.”

There are mounting calls for mandatory judicial education after four Alberta trial judges — at both the provincial and federal levels — got into hot water for their alleged reliance on discredited myths and stereotypes about sexual assault complainants.

But the notion of mandatory — rather than voluntary — judicial education is controversial and has long been resisted, on principle, by Canadian judicial leaders as a potentially dangerous incursion on judicial independence.

The concept is one thing, but “the devil is always in the details, so who decides what you have to take?” queried former Justice Cromwell, who has taught many new judges under the auspices of the National Judicial Institute (NJI) which delivers most of the educational programs federal and provincial judges undertake (albeit on a voluntary basis).

He noted there is only so much the judiciary can do by training its members. “The judiciary doesn’t name judges,” he pointed out. “I think you have to see a judicial career as a continuum, and it starts with the appointment, and it goes through a judge’s career. And so I don’t think you can take out little pieces of this, that, or the other thing…and we never should lose sight, and I know this sounds kind of traditional, but it’s important — we can’t lose sight of the importance of maintaining an appropriate balance between the absolute independence of the judge in decision-making, but drawing some lines around that to make sure that that authority isn’t in effect abused…It’s a tough balance, and I think just about every democracy with an independent judiciary has struggled over time with how to strike that balance.”

Ex-Justice Cromwell expressly did not comment on the situation of Federal Court Justice Robin Camp, who at press time was battling for his job before the Canadian Judicial Council due to comments the former Alberta provincial court judge directed at a sexual assault complainant and the rape shield law.

But the retired Supreme Court judge did extol the education that the NJI offers judges, in particular new federally appointed judges, who get two weeks of intensive training and are encouraged to make their own personal education plans.

“We are blessed…in Canada with, I think, the strongest program of judicial education anywhere in the world so we’re in great shape there,” he said. “I taught in the program for 10 years. There was extensive work on sexual assault, both substantive law and some of the social context around that, so I don’t know about other situations, but I can tell you that a tremendous amount of effort has been put into training of federally appointed judges in Canada…I think we’ve done an excellent job of it.”

An excellent job is what court watchers say the former judge did at the Supreme Court, where he wrote leading judgments, and participated in landmark decisions that struck down long-standing societal prohibitions (for example, against prostitution and assisted suicide).

But the cases that kept him up at night were the constitutional cases that affected “how the federation works,” such as the references on the Assisted Human Reproduction Act and Senate reform, said ex-Justice Cromwell, who habitually worked every day (about 80 hours per week).

“Obviously all our decisions are weighty and important, but I personally felt the heat maybe even more on those kinds of cases,” he explained. “Because you are very conscious of the fact that you are making rules about how the rules are made. You are doing something very fundamental to our life together as a country, and it’s a big responsibility, obviously.”

Ex-Justice Cromwell, 64, has made known he retired “early” (i.e. before mandatory retirement at age 75), not due to illness or exhaustion, but because he felt it was time after 19 years on the bench, including 11 years with the Nova Scotia Court of Appeal.

A generalist who wrote judgments in many areas, former Justice Cromwell said he derived the most personal satisfaction from reasoning out a case. “I really love the challenge of trying to drill down to the level of principle that deals with an area of law. That’s what I love to do, and fortunately we get to do that a lot in this court, so that’s been a real joy.”

The Downtown Eastside ruling, 2012 SCC 45, in which he wrote a unanimous judgment that liberalized the rules of standing, is a personal milestone, since he wrote a book in the 1980s on the same issue.

“It was quite a personal thrill to be writing about standing as a judge 30 years later,” recalled the ex-judge, who expects to stay active in the law by joining an as-yet undetermined law firm.

Asked how he would like to be remembered, former Justice Cromwell replied: “I guess I would hope that I would be thought of as a hardworking judge, who did his best to be fair, and who always tried to understand the principles of the cases that I had to decide.”