Justice Committee on March 10th, 2020

[The Chair, Liberal, Iqra Khalid]

Good morning everybody, welcome to the justice committee of the 43rd Parliament.

As we had agreed at the last meeting, today we are going to start with 10 minutes from the legislative clerks to tell us a bit about proposing amendments, etc., and working through legislative bills.

Ms. Thivierge

[Émilie Thivierge, Legislative Clerk]

I'm Émilie Thivierge, the legislative clerk assigned to Bill C-5. My role is to provide you and the chair of the committee with some advice on the admissibility of amendments for the clause-by-clause consideration of Bill C-5.

If you have any questions on the admissibility of an amendment that you would like to bring forward, or if you have any questions on the clause-by-clause process itself, please feel free to contact me.

My phone number and email address can be found in the memo you received. It is also possible for me and my colleagues to go to you to provide you with training on the admissibility of amendments and clause-by-clause study, if you wish.

Finally, if you wish to discuss the admissibility of an amendment that was drafted by the legislative counsel, namely my colleague here, Isabelle D'Souza, it's always useful and beneficial to give her permission to discuss it with me.

That said, I yield the floor to her.

[Isabelle D'Souza, Legislative Counsel, House of Commons]

Good morning.

My name is Isabelle D'Souza. I'm a legislative counsel at the Office of the Law Clerk and Parliamentary Counsel. I am the person assigned to Bill C-5 regarding the drafting of amendments. If you plan to submit requests for amendments to this bill, please forward them to me as soon as possible.

Please be advised that all our exchanges are confidential and non-partisan. If you intend to make requests, all you have to do is send me your instructions in writing, in your own words. If you are planning to make multiple requests, we have created a template that you may find useful in preparing your instructions.

Otherwise, when I receive your instructions, I will make sure to turn your idea into law, with the appropriate legal effects. If I believe that some of your proposals raise legal, charter or jurisdictional issues, I will bring this to your attention and, if possible, find alternatives.

Please note that the process for drafting amendments is similar to the process for drafting private members' bills. Each amendment must go through the drafting, approval, proofreading, translation and jurilinguistic revision stages. This means that the process can be quite lengthy, depending on the complexity and volume of requests received and on the fact that we sometimes work on several bills at the same time.

That takes me back to square one. Please send me your requests as soon as possible. Feel free to call me or contact me if you have any questions at any stage of the process, I will be happy to assist you.

Thank you for your time.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that.

We have two minutes, if anybody has any quick questions. If not, I would ask that you get in touch with these wonderful, very smart legislative clerks.

Mr. Lawrence.

[Philip Lawrence, Conservative, Northumberland—Peterborough South, ON]

I have a simple new member question. Is the contact information provided in the binder for the committee?

[The Chair, Liberal, Iqra Khalid]

We can circulate their contact information again, so that everybody has it.

Moving on, we'd like to welcome our two panellists for this first hour, the Honourable Michael MacDonald from the Canadian Judicial Council, and Madam Justice Adèle Kent from the National Judicial Institute.

Both of you will have 10 minutes each for your remarks, followed by lines of questioning from members of the committee.

Justice Kent.

[Adèle Kent, Chief Judicial Officer, National Judicial Institute]

Thank you. My colleague, Mr. MacDonald, and I decided that our presentation will be somewhat intermingled between the two of us.

I would invite Mr. MacDonald to begin.

[J. Michael MacDonald, Acting Executive Director and Senior General Counsel, Canadian Judicial Council]

Thank you, Madam Chair.

I'm pleased to have been invited to speak to the honourable members of this House in my capacity as interim executive director of the Canadian Judicial Council. While I am no longer a judge or a member of the council, I do have significant knowledge of the council, as I am the former chief justice of Nova Scotia and I was a council member for over 20 years.

Madam Chair, if it's fine with you, Justice Kent and I propose the following approach. She will soon speak about the excellent educational programming available to all judges in Canada through the National Judicial Institute. I will then speak to the council's overall view of Bill C-5and its laudable goal of strengthening public confidence in our justice system, particularly for sexual assault survivors. The goal is one that the judiciary in Canada wholeheartedly agrees with.

We do, however, want to respectfully stress two concerns for your consideration. Firstly, the principles of judicial independence and separation of powers require judicial education to always remain under the control and supervision of the judiciary and free from outside influence. Of particular concern would be influence from government, which after all, is a party to all sexual assault cases.

The second area of concern involves the fact that this legislation covers only federally appointed judges. Yet our provincial and territorial judges hear the vast majority of sexual assault cases. In our view, they require access to the same judge-led training opportunities as their federal counterparts.

If the government is intent on passing this bill, then to address our judicial independence concerns, I will propose some minor adjustments to the bill's present language to temper and moderate the bill's effect on the principles of judicial independence.

Then we would be happy to take questions.

First, I would like to say a word about the role of the Canadian Judicial Council. The council is composed of all federally appointed chief justices and associate chief justices of Canada's superior courts. It works to preserve and enhance public confidence in the judiciary. Chief justices must be, and be seen to be, leaders in the education of judges.

Furthermore, honourable members, as Justice Kent will detail, Canadian chief justices are and must be leaders in judicial education. Overseeing judicial education is a fundamental responsibility of the judicial branch of government and is a key focus of our council's mandate. I can assure each and every one of you that every council member takes very seriously their responsibility to provide oversight and guidance on the kinds of continuing education the respective judges undertake.

In short, to ensure public confidence in the administration of justice, the justice system relies on a well-educated, professional and independent judiciary.

Let me again make it clear that we entirely agree with the laudable objectives of this legislation and what it seeks to achieve. All Canadian judges must be keenly aware of the challenges faced by survivors of sexual assault. I have three daughters. My daughter is a first-year lawyer. She reminds me that the social context to education of the type targeted by this bill is as important and fundamental as our understanding of contract law, tort law, criminal law and other substantive law.

As my colleague, Justice Kent, will attest to and provide more detail on, the National Judicial Institute, Canada's primary education provider for Canadian judges, is committed to ensuring that its professional development programs and resources meet the needs of Canada's judiciary and ultimately help to strengthen the justice system.

The judiciary is keenly aware of the need to continually improve and learn to maintain the confidence of the public. Let me respectfully say, in our humble opinion, we are on top of this.

My colleague, the NJI judge, will now provide you with more details in this regard.

[Adèle Kent]

First of all, let me thank all of you for allowing me this occasion to attend here and give you some information about the judicial education that we offer to Canadian judges.

The National Judicial Institute, NJI, is a not-for-profit independent organization dedicated to developing and delivering high-quality professional development to all Canadian judges, federal, provincial and territorial. The NJI is bijural and recognizes the importance of incorporating indigenous legal principles into our training.

One of the NJI's fundamental principles is that judicial education must be judge-led. This is consistent with the International Organization for Judicial Training declaration on judicial training, which states that “the judiciary and judicial training institutions should be responsible for the design, content, and delivery of judicial training.”

We have available for you the NJI's 20 principles of judicial education. One of the primary and fundamental ones is the necessity that judicial education be judge-led.

It is important that everyone involved in a trial is treated with respect, as the fundamental role of a judge is to be fair and impartial. This ensures that the rights of all participants, whether they are the complainant, the accused or witnesses, are respected.

Since 1990, the Canadian Judicial Council has required that all of these essential programs include social context education to ensure that judges, particularly newly appointed judges, are aware of the challenges faced by vulnerable groups in society.

From January 2014 to January 2020, the NJI offered 42 sessions dealing with sexual assault law, the skills required in sexual assault trials and the context of witnesses in these cases. Some sessions consisted of multi-day programs, while others were part of a larger program. Some of these sessions consisted of national programs and others were offered at specific provincial superior courts.

In addition, 15 other sessions focused on related issues such as domestic violence, trafficking in persons, victims' rights and trauma-sensitive approaches.

From the date of their appointment, all judges have immediate access to NJI's Internet site, which houses a series of videocasts on issues related to sexual assault cases. This suite of videos continues to grow. It includes videocasts not only on the laws and on the skills judges need to manage their cases, but also on the reality of vulnerable witnesses in sexual assault cases.

I'm now going to talk for a few minutes about the education for federally appointed judges, then provincially appointed judges. I'll explain to you why I'm making that distinction.

For the federally appointed judges, pursuant to the professional development policy of the Canadian Judicial Council, each judge is expected to take 10 days of education. Two kinds of programs are available: national programs, which the NJI designs and delivers; and their own court-based programs, which we also assist in delivering.

For new judges, within their first year of appointment, they are mandated to take two weeks of education, one spring, one fall. During those 10 days of education, two days are dedicated to criminal law. That, of course, addresses in part sexual assault cases. In addition, they take a session on social context. One of the parts of that addresses myths and stereotypes in sexual assault cases as well.

Then in their second year to their fifth year, all federally appointed judges are expected or mandated to take a course called “Judging in Your First Five Years: Criminal Law”. This is a five-day course on, start to finish, how to manage and run a criminal trial. Because sexual assault trials are technically very challenging trials, the hypothetical examples that run throughout the week, which the judges use to practise their skills, are both sexual assault hypotheticals.

We've run this course twice now, in 2019 and in January 2020, and each time, 60 newer federally appointed judges attend it.

In the course, the judges practise their skills. These include how to address issues in cross-examination. They watch on video a cross-examination of a complainant and an accused. They sit at tables with senior criminal judges and academics and discuss when the cross-examination went out of bounds, when lawyers were asking inappropriate questions such as about a complainant's past sexual history, and so on, and how to manage those particular cases.

In addition, during the week, to ensure that judges understand the needs of vulnerable witnesses, we have sessions that address particular groups. In the offering of last January, we were very fortunate to have Commissioner Marion Buller, Counsel Christa Big Canoe and Elder Kathy Louis, all of whom worked on the missing and murdered indigenous women and girls commission. They talked to us about the particular challenges that are facing indigenous women, who face an overrepresentation of violence, both sexual violence and family violence, from the historical issues we all are so familiar with.

The session was hosted by two indigenous judges from British Columbia: Justice Len Marchand, from the B.C. Supreme Court; and Judge Alex Wolf, from the B.C. Provincial Court.

There was also a session on children, and children as witnesses, because, of course, they have particular vulnerabilities. As the course develops throughout the years, we will be offering additional segments to the judges on other vulnerable witnesses, such as those with handicaps, recently arrived immigrants to Canada and so on.

It is a mandated program that the judges must take. In addition to this program, from that point on, for the rest of their judicial career, they have available to them the curriculum from the NJI, which contains sessions and courses on sexual assault law.

The annual criminal law course treats not only sexual assault cases, but also related issues. For example, in 2019, a portion of the criminal law course was on human trafficking. Of course, human trafficking can be for many things, and one of them is for sex.

Evidence, again, is an intensive course where judges work through hypotheticals. The criminal law hypothetical is a sexual assault case: a camp counsellor and one of his charges.

We also do programs with the Canadian chapter of the International Association of Women Judges, which often treats these issues.

In addition, the courts have their own programming, twice a year. Often, issues involving sexual assault trials are part of those programs.

Many of the courts have developed what they call “101” courses for their new judges. One of the 101 courses that we assist with is on sexual assault cases.

That's a bit of a laundry list of what's available to the federally appointed judges. Let me turn to the provincial court judges now, because this is important.

We don't have exact figures, but we estimate that about 95% of sexual assault cases are heard by provincial court judges. NJI works with the Ontario Court of Justice, and there is training in sexual assault trials within its training program. However, I think it's fair to say that for provincial and territorial judges, in total, they do not have access to the same amount of education, because of a lack of resources from their governments.

Provincial and territorial judges may attend NJI programs, but it's rather restricted. For example, the intensive program that I explained to you that's mandatory for federally appointed judges, that addresses sexual assault cases in detail, is not available to provincial court judges because of the funding mechanism for designing and delivering that course and because of the demand we now have amongst our federal judges. They can attend other programs, but again, because of the funding model, their attendance is restricted.

In conclusion, I would like to make three points.

First of all, from my meeting with and working with judges across Canada every day, judges recognize the importance of education and recognize the importance of education in sexual assault cases. They particularly recognize that they need to understand the context of all the people who come into their courtroom.

Second, it's important that we, as an institute, along with the Canadian Judicial Council, recognize that provincial and territorial judges are in need of this training, as well. They conduct most of the sexual assault cases in the country.

Finally, the NJI, along with the CJC, has committed to working with the federal government, as we can, to strengthen our justice system in Canada.

Thank you very much, and I'll turn it back over to Mr. MacDonald.

[J. Michael MacDonald]

Madam Chair, would I have a few minutes?

[The Chair, Liberal, Iqra Khalid]

Unfortunately, we're hitting almost a minute and a half over for Justice Kent, and we must move to rounds of questioning. Perhaps what you would like to address can be addressed as a response to a question that will be asked.

[J. Michael MacDonald]

Thank you.

[The Chair, Liberal, Iqra Khalid]

In the first round of questioning, we'll have six minutes per party. It will go from Conservative to Liberal to Bloc to NDP. Then we'll go to the second round, should there be sufficient time.

Mr. Maguire, you have six minutes.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you, and thank you to our witnesses for being here today.

It's great to hear your testimony on this bill. I'm very interested in the educational aspect that both of you clearly pointed out.

Justice Kent, you mentioned it's very important to provide the training at both provincial and territorial levels, and the importance of education being recognized.

Having said that, we hear a lot in the country about where the justice system is at, the faith in the justice system, restoration and this sort of thing. Do you think this legislation goes far enough in restoring that faith in our justice system, given that the federal ombudsman for victims of crime has stated that only one of every 20 victims comes forward? That's about 5% of victims that contact law enforcement. Is this helping to give confidence to more people coming forward?

[Adèle Kent]

Any discussion about matters of sexual assault cases should ensure that victims who have been assaulted and wronged come forward, and that they are respected as they go through the process, from their first contact with the police right through to the courtroom. It's important they are assured that they are respected, that they are treated with dignity, and that their cases are tried fairly. As a judge, I'm always reticent to comment on legislation. That is in your domain, but I always welcome the chance to discuss it.

Mr. MacDonald, you may have something to say about the legislation.

[J. Michael MacDonald]

Confidence in the judiciary, like confidence in all our institutions, is fundamental. It's hugely important. To answer your question, I believe this bill will go a long way—I too am concerned about the stark statistics about under-reporting—toward giving confidence to the public but also to the victims of sexual assault.

Another important aspect about confidence in the justice system is an independent judiciary. Perhaps I could just take an opportunity to elaborate on that. The concern is that while all parties agree with the noble spirit of this legislation, not all policies will be agreed upon. There could be some controversial policies. The concern we have is that when the language used in the bill....

We will provide you, Madam Chair, with a document of the bill with some very slight changes to highlight the importance. When the verbs are “must” and “shall”, you have to look at the spectre of five or 10 years from now, or 10 or 20 years from now. What if a government not so well intentioned were to direct judges to learn about, say, “the myth of the residential schools”. Let's say there's a reference made to the Supreme Court of Canada on a controversial policy. Pick whatever it may be—climate change or whatever policies are hotly debated now in Parliament. What if Parliament were to direct judges to say, “We want you to learn about the myth of the Holocaust; we want you to learn about our version of climate change; we want you to learn about our version of this”?

That's the concern we have. We are humbly suggesting that maybe the language could be tempered so that the verbs “must” and “shall” are not there and the vision and the laudable goal of the legislation would still be met.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you. I caught your words in your opening comments about the laudable goal, sir, as well.

That kind of leads me to my next question. Elaine Craig, an associate professor at Dalhousie University, wrote a book entitled Putting Trials on Trial. She stated that judges can, through their demeanour, make the trial process more humane for sexual assault claimants, whom I just referred to, without threatening the constitutional rights of the accused.

She outlines specific cases, as you did, Madam Kent, in regard to how these can be handled differently by judges in the training you have and that sort of thing. Is it possible to create that culture within the courtroom without having to do the legislation?

[The Chair, Liberal, Iqra Khalid]

You have 30 seconds for a response.

[Adèle Kent]

The short answer is yes. As I said in my closing, judges are dedicated to ensuring that everybody is treated respectfully. When I was a.... I have only another second to go, so I won't go into my past, but I think without the legislation, yes, judges know that they have to treat everybody with respect and will take the education that is needed to do that.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Mr. Maloney, you have six minutes.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

Justice Kent and Justice MacDonald, thank you very much for coming today. Your presentations have been very informative and very helpful.

In terms of my background, I practised before the courts in Ontario for 20 years. I grew up surrounded by people in the legal profession. I say that only because it gives me some insight. I believe we have the greatest justice system in the world. We live in a world now where it's easy for people—journalists, politicians, the public—to pick one-off situations and use them to attack the system. That is fundamentally wrong, in my opinion.

Justice MacDonald, I'm glad to hear you say that we're on top of this, because I do believe we are. I know that in Ontario, the education system for judges is top-notch. You get judges appointed from a civil litigation background. They need to be trained on criminal procedure and some update on criminal law, or vice versa. The training system we have is extraordinary, in my opinion. Forty years ago when judges were appointed, they came from a general background. They practised all these different areas. They didn't need the training. Now they do.

This is the latest example, but we can't do anything that fetters the discretion of the judges. That's why I'd be very interested to hear what amendments you propose. I will go through some of the language in the legislation in a moment. The preamble of the act says, “survivors of sexual assault in Canada must have faith in the criminal justice system” and “Parliament recognizes the importance of an independent judiciary”. That has to be paramount in anything that's done here.

I'll ask you, Justice MacDonald, as it wouldn't be fair to Justice Kent, if there are any specific amendments you would recommend right off the top. I'm looking at some of the sections, for example, on the reporting of judges who go to seminars.

[J. Michael MacDonald]

I wonder if we could hand out the handout. I will stay within my time, Madam Chair. I can answer that question a lot better with it.

In the meantime I can start by getting right to what the concern would be. The concern is that in 20 years from now, if the government of the day were to direct judges to learn about the myth of residential schools, or something else that was just not properly spirited, you would want the judiciary to stand bravely, courageously, and say, “You can't tell us what we have to learn. If you tell us what we have to learn, you tell us what we have to think, arguably.” That's the concern.

We want to be able to tell that government that it can't do that. We would not want the answer to be, “Well, actually that was done in 2020. Judges were told with verbs like 'must' and 'shall' that they had to learn these things.”

Our main message is, first of all, as a result of Justice Kent's detailed description, trust us; we are on top of this. Secondly, we can still meet the spirit of this legislation by tempering the verbs so that we will ably comply with the legislation without some future government trying to drive controversial education initiatives down the throats of judges.

I think that's the main concern.

If you look at—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Can I just interrupt for one second?

[J. Michael MacDonald]

Absolutely.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I think, part of that as well is—and you touched on this, too—the importance of the judges being the ones who create the curriculum and the ones who decide.