Evidence of meeting #4 for Justice and Human Rights in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was training.
A video is available from Parliament.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Mr. Lametti, thank you so much for being here with us today.
We heard from two witnesses who made us very aware of the issue of judicial independence. You won't be surprised to hear that we agree with that. We think it's important for the courts to have this flexibility that is essential to their work and to the protection of democracy.
That said, among the amendment recommendations made by Mr. MacDonald and Ms. Kent, they suggest a change to subsection 2(3) of the bill amending the Judges Act. That subsection would add a subsection after subsection 60(2) of the Judges Act. The new subsection begins: "The Council shall ensure that seminars on matters [...]".
In the current version of the proposed paragraph, subparagraph (b) requires that seminars:
(b) include instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding myths and stereotypes associated with sexual assault complainants.
Ms. Kent and Mr. MacDonald's proposal is that we add, after the word "include", "where the council finds appropriate".
I'm having trouble identifying circumstances where it would not be appropriate to do so. I understand that this is not your amendment, but have you given any thought to this?
Are there any situations in which you consider that these prohibitions or principles should not be the subject of training?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
As I have just told our colleague Mr. Moore, this is the first time I have heard such suggestions, and we will give them due consideration.
As you can see from the wording of the section of the proposed bill, these are very technical issues, but they are important because they address some of the myths and problems in the system.
Under the current judicial appointment process, a judge who does not necessarily have judicial experience may be appointed. He or she may come from another area of the law, but as a judge of the Superior Court, he or she may be called upon to deal with such cases.
It is necessary to ensure, from the outset, that the judges have adequate training in a field that is very technical, but also very important. Awareness is a very important aspect.
I think we're aiming for the same goal, but I'd like to have the time to study the proposals properly.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
If I understand correctly, these are topics that you feel should be covered in the training we give new judges.
I'm not criticizing your position.
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
As a lawyer, I would say yes, but as a minister, I must respect judicial independence. So we have to find a way to ensure, in cooperation with the council, that judges are trained.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Do you feel that the current wording of this paragraph in any way undermines judicial independence?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I think not, because it only applies to people who apply for judicial appointments. It is a commitment that these people will make when they decide to apply. They will have a contractual commitment to take such training once they are appointed. It is not something that is being imposed on the judges who are sitting now.
Bloc
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
Again, this is a commitment that candidates will make at the outset.
Liberal
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, Chair, and thank you, Minister, for appearing.
We know from recent decisions there are discredited myths and stereotypes that have been used, and thus we see the necessity of Bill C-5. Complainants of sexual assault are also facing inadequate social supports. They have inadequate information about the core process, and they're often confronted with a system that ignores their wishes and their complaints. Bill C-5, by itself, is not going to solve all these problem, and I hope your government and your provincial colleagues are recognizing the systemic issues that also need to be certainly addressed within the supports.
I have a question about the differences between Bill C-5 and Bill C-337. Bill C-337 went through the House of Commons with unanimous consent. Your department—and I know you weren't the minister at the time—at the time gave its consent to Bill C-337 going through. It did come with some amendments in the Senate. Bill C-5 more closely represents the version of the bill that made it through the Senate's legal and constitutional affairs committee.
There are some noticeable parts that are different. Under Bill C-337, judicial appointments would have been required to complete judicial training at the satisfaction of the Commissioner for Federal Judicial Affairs. Bill C-5 now omits this. In the reporting requirement, Bill C-337 included a section where the number of sexual assault cases heard by judges who never participated in seminars would also have to be included in the reports.
Minister, can you explain why these changes made their way into Bill C-5, and what changed in the three years? Your government originally assented to these being in Bill C-337, and now we don't see them in Bill C-5. I'd like you to explain the department's position on this.
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I wasn't the minister at the time this happened. All of this was done through the work of this committee and the Senate committee, where we worked very closely with senators.
In general, we're looking for training as well as better reporting as a way of seeing how well this has been taken on by judges. On more technical matters, I think I could leave the question for Stephen.
General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Public Law and Legislative Services Sector, Department of Justice
I'll just follow up briefly to say, as the committee has been discussing with previous witnesses and with the minister, that the question is finding the right balance between the judicial independence principle and the encouragement that the government is trying to ensure through the legislation it's bringing forward.
The first important change is the difference between applying the legislation to sitting judges, as it would have originally, as opposed to candidates for judicial appointments. Again, that's clearly designed to recognize the judicial control over judicial education for sitting judges, moving it to an undertaking as opposed to.... That change that was moved in the Senate, the government is now supporting as reflecting a better balance.
Likewise, on the reporting requirement in terms of the level of detail, originally in Bill C-337 there was discussion of the number of sexual assault cases in particular that had been heard by judges who hadn't undergone the training and so on. There was a sense in the evidence from witnesses that this could be perceived as targeting members of the judiciary, so it's moving to a softer reporting requirement in the sense of not being seen to potentially single out particular courts or particular judges. Reporting on quantum numbers was a more appropriate approach for striking an appropriate balance.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Would we be singling them out if we're just reporting on the numbers like they were anonymous?
General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Public Law and Legislative Services Sector, Department of Justice
I wouldn't be singling them out by name, but I think the idea of reporting more globally was consistent with what the government had done in Bill C-58 in terms of the way expenses were being reported at aggregate levels, so it moves it towards a better balance of respecting judicial independence.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you.
Minister, there are other federal decision-making bodies that have profound influence on people's lives. I can think of the Parole Board of Canada and the Immigration and Refugee Board of Canada. This bill goes after the Judges Act, but is there room for the federal government to consider mandatory training through legislation for these other federal bodies?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I think it's fair to say that this is an idea that a government ought to consider and that our government ought to consider. I would say not in this legislation, in part because it's not within my mandate, but also the principle of judicial independence is quite particular to judges. There would be different architectural features and possibilities that would be possible in both of the examples you've raised. There would be different ways to perhaps do things more directly in those cases that don't exist yet.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Will you be speaking to your respective colleagues on those matters?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I would be happy to speak to my respective colleagues.
Liberal
The Chair Liberal Iqra Khalid
Just being cognizant of time, I will, for the second round of questioning, reduce the time to three minutes per person. I hope that's okay with you.
Moving to the Conservatives, I have Mr. Lawrence on the list for three minutes.
Conservative
Philip Lawrence Conservative Northumberland—Peterborough South, ON
Thank you.
Thank you for agreeing to appear, Minister.
The justices expressed over and over in their testimony prior to yours, and we've talked about it a fair bit, the concern of independence.
Do you believe, Minister, given the Ethics Commissioner's findings in the SNC-Lavalin affair, that your government is well positioned to protect judicial independence?
Liberal
David Lametti Liberal LaSalle—Émard—Verdun, QC
I think we're extremely well positioned to protect judicial independence. The principle is well entrenched. I share that opinion with the justice that I had the good fortune of clerking for at the Supreme Court, Justice Peter Cory. I saw first-hand in a very intense way the manner in which justices exercise their judicial independence. I respect that principle quite firmly, and I think so does our government.
Conservative
Philip Lawrence Conservative Northumberland—Peterborough South, ON
I'll also follow up on my colleague's comments.
We have a reporting mechanism of within 60 days to find out whether the training is happening. How does the department expect to find out whether we're really having an impact? Of course, we have an amazing justice system but some inappropriate insensitivities, so how are we going to measure that going forward?