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.

On the agenda

MPs speaking

Also speaking

Émilie Thivierge  Legislative Clerk
Isabelle D'Souza  Legislative Counsel, House of Commons
Adèle Kent  Chief Judicial Officer, National Judicial Institute
J. Michael MacDonald  Acting Executive Director and Senior General Counsel, Canadian Judicial Council
Nancy Othmer  Assistant Deputy Minister, Department of Justice
Stephen Zaluski  General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Public Law and Legislative Services Sector, Department of Justice

11:35 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

March 10th, 2020 / 11:35 a.m.

Liberal

James Maloney Liberal Etobicoke—Lakeshore, ON

The reason for that is that if you have people who are not involved in the system doing it, they cannot provide input with the necessary context and background of understanding of the law and the legal system. That's critical to determining what these programs should be. I would say that's the same as the point you're trying to make with respect to Parliament.

11:35 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

Well, exactly. Thank you.

I believe all honourable members have the document. Thank you, Mr. Maloney, for highlighting the preamble where it refers to “the importance of an independent judiciary”. We would add, “that is free from improper influence”.

We would humbly and respectfully suggest that the “Whereas” that identifies the “problematic interpretations of the law may arise”, is a negative thing in the preamble. This is positive legislation. We see this as a positive thing. We have a robust appeal process. That is an unnecessary entry into the preamble.

Then if you continue on, and I'll do so very briefly, in 2(c) we're simply saying “should” instead of “shall”. Again, that would ensure that in 20 years' time we can tell a government that would not be so well-intentioned that there's no precedent for saying “you shall”.

Again if you turn to 2(b) on page 3, where it says “include”, we would add “where the counsel finds appropriate”. Again as you have indicated, Mr. Maloney, just as Justice Kent has so ably identified, it has to be judges who find it appropriate so that we are not subject to undue influence.

Again, in proposed subsection 62.1(1), where the minister asks the council.... Again, use soft language, less mandatory language, “should” instead of “must” in 62.1(1). Then proposed subsection 62.1(2) refers to any report received.

11:40 a.m.

Liberal

The Chair Liberal Iqra Khalid

Justice MacDonald, I'm so sorry, but we're out of time. I'm sure we'll continue in the next round perhaps.

11:40 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

Thank you very much for the opportunity, Madam Chair, to answer that question.

11:40 a.m.

Liberal

The Chair Liberal Iqra Khalid

Monsieur Fortin, you have six minutes.

11:40 a.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

Thank you, Madam Chair.

Thank you, Madam Justice Kent and Mr. Justice MacDonald. I'm pleased to hear from you this morning.

I understand from your testimony that you have two main concerns: on the one hand, the training of provincially appointed judges who are appointed by the provinces, and on the other hand, what we just talked about, judicial independence.

These are points I'm also very sensitive to, but I think there's a small distinction to be made. As far as I'm concerned, judges who are appointed by the provinces should not be subject to interference by the federal government. In my view, it's up to the provinces to deal with these issues.

That said, judicial independence is an issue of great interest to me. I would have asked you for clarification, but the document you just sent us clarifies it.

I'd like you to confirm something for me. As I understand it, you're asking us to trust all of our judges and our courts. As a lawyer myself, I also trust our judicial system, and I share the opinion of my colleague Mr. Maloney that we may have the best judicial system in the world today.

In the distinction you make, you invite us to place this trust in the judiciary rather than in the legislature. Is that correct? If so, what about democracy, the right of citizens to elect the legislator, to elect their representatives to Parliament, so that the public can influence the issues that concern our society? Is there not a democratic problem with the choice you are asking us to make?

11:40 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

I'll answer you in English, if you don't mind.

11:40 a.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

Of course, there's no problem.

11:40 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

Thank you very much for identifying the issues as we have highlighted them, and for raising the issue of our provincial and territorial court colleagues, because we want to work with those involved, everyone involved, including the National Judicial Institute, the provincial court chiefs, the Federal Court chiefs, and of course the Minister of Justice and the Department of Justice, to make this laudable goal a reality not just for federally appointed judges, who hear only a small percentage of sexual assault cases, but for all Canadian judges.

We stand ready to work together. Within the judiciary, we have a wonderful history of co-operation and working together.

I must say, as has been stated earlier, that I too believe we have the best justice system in the world. That justice system respects boundaries and respects judicial independence. As chief justice, I respect entirely the fact that you are the guardians of the public purse, yet we require you to support us and to support an independent judiciary.

In Canada, we can still collaborate, work together and keep our independence. That's essentially one of our messages today. We would like to work with Parliament to make sure that this is available for every Canadian judge, not just for federally appointed judges.

11:40 a.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

It wasn't so much that I was concerned about that; I share that concern. As I said, this is a provincial responsibility, and I am confident that the provincial governments will take whatever measures they deem appropriate for the education of their judges.

Here's what I'd like you to help me understand. In the position you're taking this morning, isn't there some kind of contradiction? We're asking the public to trust their justice system. That goes without saying, and I trust that system as well. But they are being asked to give that confidence to the detriment of the democratic process that allows the legislator to give directives, as Bill C-5 does by proposing training for judges.

I'm not sure I understand your position on this particular issue. Citizens should take away the right of the legislator to decide these things and leave it to the judges, which I find a little difficult to accept. I would like to hear what you have to say on this point.

11:45 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

That is an excellent question.

We live in a constitutional democracy, not a parliamentary democracy. A constitutional democracy dictates that your laws, as all of you know, have to be constitutional, and a constitutional imperative is that the judiciary has to be independent and cannot be subjected, especially, to government.

To your point, are we therefore encroaching on your democratic obligations? Again, that's where Canada shines. We balance well. You require comfort. We have an accountable judiciary. Let's think about it. We have a robust appeal process. We have a very robust—I chaired it for five years—judicial conduct process. Everything we say and do is on the record in court, and we—and Justice Kent can elaborate on this—are much more open and transparent about our educational offerings in the past two years.

I understand your point that it cuts both ways. We can't say we're so independent that we are going to subsume Parliament's obligation. Not at all. What we are saying is that, in a constitutional democracy, we need the appropriate balance, and our proposed changes strike that balance, I would respectfully submit, but Justice Kent can talk about what we view as openness.

11:45 a.m.

Chief Judicial Officer, National Judicial Institute

Adèle Kent

I think the chair may differ—

11:45 a.m.

Liberal

The Chair Liberal Iqra Khalid

I am so sorry, but we are really strapped for time. My apologies. Perhaps Justice Kent can address that with some of the upcoming questions.

Moving on, Alistair MacGregor, it's your turn, for six minutes.

11:45 a.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you very much, Chair.

Justice Kent, Justice MacDonald, thank you so much for coming to be with us today.

I am detecting the struggle that both of you are having with the subject, because I know you want to maintain the principle of judicial independence, and you've stressed very much that these educational programs are happening. They're being led by judges, and that's the way it should be, but at the same time, we as the people's representatives have heard from our constituents and from Canadian society that there is this loss of faith in our justice system.

We see judges who have quite recently used discredited myths and stereotypes when making their rulings. They've used insensitive language.

I guess I just want to tack onto the last line of questioning. You've made your proposed amendments to Bill C-5. Is it your view that this bill is necessary? You've talked about the laudable goals of Bill C-5, but are you quite happy with the bill being presented to us? Is Parliament fulfilling its obligation with it?

11:45 a.m.

Chief Judicial Officer, National Judicial Institute

Adèle Kent

Let me start by telling you about one of the obligations that I think the NJI has. The Supreme Court of Canada has made quite clear to judges in Canada that they must understand the context of the people in their courtroom. One of the most recent examples was the witness who wanted to testify in a sexual assault case wearing her religious garb covering part of her face, and the Supreme Court said you have to balance her rights against the accused's rights in looking at a number of situations.

I see the NJI's role as ensuring that we have consultations with the community. When the first bill was introduced, Bill C-337 in the last Parliament, I had hours of consultations with groups that worked with victims and survivors of sexual assault, talking to them. We now have one of our videocasts where we have three representatives of groups that work with vulnerable witnesses talk about the experiences of those people in the courtroom, their experiences in the community, their experiences as survivors of sexual assault. I see that as one of the ways we ensure that we also respond to what you're hearing in the community.

11:50 a.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Justice Kent, you appeared before the status of women committee in 2017 when Bill C-337 was appearing, and I've gone over the witness testimony. That was nearly three years ago. Bill C-337, for a variety of reasons, unfortunately did not become law in the 42nd Parliament, but here we are, trying again.

It's been nearly three years since you gave your testimony on that bill, and here you are again. Can you maybe explain to the committee whether, in the three years that have passed, there have been any noticeable changes in the style and content of training for judges?

11:50 a.m.

Chief Judicial Officer, National Judicial Institute

Adèle Kent

Absolutely. The course I talked about, called “Judging in Your First Five Years: Criminal Law”, was created in response—I won't say completely, but partially—to Bill C-337. It is now a mandatory course for newer appointed judges. That has changed as a result of the CJC policy and the program we offer.

The ever-growing suite of videocasts on sexual assault trials that I talked about is new and available to all judges, including provincially appointed judges because it's digitally transmitted.

It's fair to say that all of the courts we work with have done programs in sexual assault cases. Certainly we've seen that happen in the past three years. There is attention being given to the issues that have been raised as part of this discussion.

11:50 a.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

I'll get a last question in here for the Canadian Judicial Council. Bill C-5 stipulates that the courses have to be developed in consultation with persons, groups or organizations that the Canadian Judicial Council considers appropriate. Could you inform the committee how you decide who is appropriate and who to consult on these matters?

11:50 a.m.

Acting Executive Director and Senior General Counsel, Canadian Judicial Council

J. Michael MacDonald

That's an excellent question, and in line with earlier discussion. Justice Kent is abundantly aware of this because she does it every day.

We have to make a clear distinction between advocates and educators. We can't hear from advocates on either side because that just wouldn't be our role as it applies to being independent, but we need education.

As far as things changing, Mr. Kelloway from Nova Scotia will be interested in this. When I was chief justice, we brought our judges to the African Nova Scotian community and asked the community what it's like for them to go to court. How many bus transfers does it take to get from Preston to court? It's a $50 cab ride. Cabs won't come to their community. Maybe if they're late for court we will better understand the challenges they face.

We've met with the Mi'kmaq community. We are trying to find that balance where we remain independent. We don't hear from advocacy groups. We hear from educators, from elders and from people who understand. We explain to them about judicial independence.

Things have really changed in the 24 years I've been on the bench. I think we are moving in the right direction.

11:50 a.m.

Liberal

The Chair Liberal Iqra Khalid

Thank you.

We have six minutes left. We have another full round of questioning. There are two options I recommend to committee members. We can have one minute per round, or I can open it up for rapid-fire questions to anyone who has a question they would like to ask, so we can use the six minutes on a consensus basis. I leave it to you to decide.

Ms. Sahota.

11:50 a.m.

Conservative

Jag Sahota Conservative Calgary Skyview, AB

I'd like to thank the witnesses for being here.

11:50 a.m.

Liberal

The Chair Liberal Iqra Khalid

Sorry, Ms. Sahota. We were just discussing how we were going to split up the rest of the time.

11:50 a.m.

Conservative

Jag Sahota Conservative Calgary Skyview, AB

I thought it was a question round.

11:50 a.m.

Liberal

The Chair Liberal Iqra Khalid

Could I just canvass the room for who has questions? I know Pam does. There are a lot of you. I think we'll have to do three and three then.

Okay, three minutes to split among the Conservatives—