Evidence of meeting #56 for Status of Women in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was justice.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Norman Sabourin  Executive Director and Senior General Counsel, Canadian Judicial Council
Adèle Kent  Executive Director, National Judicial Institute
Marc Giroux  Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs
Carissima Mathen  Associate Professor, Faculty of Law, University of Ottawa, As an Individual
Elaine Craig  Associate Professor, Faculty of Law, Dalhousie University, As an Individual
Jennifer Koshan  Professor, Faculty of Law, University of Calgary, As an Individual
Ursula Hendel  President, Association of Justice Counsel

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Good morning, colleagues. Welcome.

We have one order of business before we turn to our panel. Ms. Malcolmson has tabled an order of motion, which was sent out to you, so I'll turn it over to Ms. Malcolmson.

8:45 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Thank you, Chair. Good morning, committee.

I will move the first motion that I gave notice of on Thursday. I move that the committee invite the Minister of Finance, the Honourable Bill Morneau, at the earliest opportunity, to explain the effect of budget 2017 on women and girls and that this meeting be televised.

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Is there discussion on the motion?

Mr. Fraser, go ahead.

8:45 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

The finance minister, I believe, is at the finance committee today to take questions on budget 2017. That's the appropriate form. I think every committee has an interest in hearing the finance minister speak about the budget. I don't think it is appropriate for him to appear at each committee that would like to see him. I'm sure we all would.

For that reason, the best forum is in the finance committee today to take questions. I hope there are questions on gender there or, of course, in question period in the ordinary course.

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Ms. Malcolmson is next.

8:45 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Thank you, Chair.

If I could speak to my motion, I'm secure of the four rationales.

First, the budget was touted as an important step for women with the use of gender-based analysis and the gender statement. It is reasonable, therefore, to ask the Minister of Finance to appear before this committee to discuss the ways in which the decisions were made in the budget. This committee has done at least two studies over the last five years specifically on gender budgeting, and there was our study last year on gender-based analysis. We have expertise at this table specifically.

The second point is that Finance Canada conducts a GBA but does not share its findings. Therefore, we need to ask the finance minister directly. That is something that has been said several times in public by the finance minister.

Third, his fall economic statement, released November 1, noted that it would ensure that the government continues to deliver real and meaningful change for all Canadians. It specifies publishing a gender-based analysis of budgetary measures.

Fourth, Standing Order 108(2) specifically says this committee has the broad authority to study the policies, programs, expenditures, budgetary estimates, and legislation of departments and agencies that conduct work related to the status of women.

Inviting the finance minister is no different from having any other departments, such as Statistics Canada, Industry, Natural Resources—all of which have appeared before this committee. I would argue that if this government has a good story to tell about its gender budgeting, we would benefit from hearing from the minister directly.

Thank you.

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Are there further points on that?

(Motion negatived)

Would you like to bring your second motion?

8:45 a.m.

NDP

Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

I would. Thank you.

I move that the committee invite the Minister of Status of Women, the Honourable Maryam Monsef, to appear before the committee at the earliest opportunity to brief the committee members and respond to questions on her progress to date in implementing GBA+, and that, in addition, Treasury Board Secretariat officials be invited to appear at this meeting to update committee members on the secretariat's response to GBA+, and that this meeting be televised.

While I have the floor, I'll say again that the March 31 status report that was sent to this committee came after the minister appeared. Again, because of this committee in the past, and this iteration of this committee having studied GBA in detail, we would benefit from hearing about and being able to ask her about her progress and the extent to which she is pursuing our key recommendations in our report. These were the establishment of a commissioner and the establishment of legislation. Those are our two key recommendations and we would benefit from hearing her rationale.

Thank you.

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Is there discussion on the motion?

Ms. Damoff, go ahead.

8:45 a.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

I would just say that the minister was just here, and also we've received an interim report.

I think it would more beneficial, if we want to bring someone, to bring the department officials, because they're the ones who are implementing it. We won't support bringing the minister back two weeks after she was just here.

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Is there further discussion?

8:45 a.m.

Conservative

Karen Vecchio Conservative Elgin—Middlesex—London, ON

Can we have a recorded vote, please?

8:45 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Yes, we can have a recorded vote.

(Motion negatived: nays 5; yeas 3)

8:45 a.m.

Conservative

Rachael Harder Conservative Lethbridge, AB

Sorry, Ms. Nassif is not here, so she cannot be recorded as against.

8:50 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Thank you for the correction.

8:50 a.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

I don't know if I can do it now or if you want a notice of motion that we bring departmental officials to update us on GBA+. Do you want me to put it in writing for the next meeting?

8:50 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Yes, it would be in order to put it in writing and then we'll go from there.

All right. Now we turn our attention to private member's Bill C-337, an act to amend the Judges Act and the Criminal Code (sexual assault).

We're extremely pleased today to have, from the Canadian Judicial Council, Norman Sabourin, who is the executive director and senior general counsel there. We also have, from the National Judicial Institute, Adèle Kent, who is the executive director. And from the Office of the Commissioner for Federal Judicial Affairs, we have Marc Giroux, who is the deputy commissioner.

Welcome to you all.

I'm going to begin with Norman.

Norman, you have five minutes for your comments and then we'll go from there.

8:50 a.m.

Norman Sabourin Executive Director and Senior General Counsel, Canadian Judicial Council

Thank you very much.

Madam Chair, members of the committee, on behalf of the members of the Canadian Judicial Council (CJC), I sincerely thank you for your invitation.

The Council was created in 1971 to ensure better administration of justice, to exercise clear authority in overseeing judicial conduct and to assume explicit responsibility with respect to the continuing education of judges.

The independence of the judiciary requires judges to be in charge of the professional training of judges. In return, that requires the judiciary to ensure public trust in the competence of the judges.

The CJC has been a leader in professional training, including in bringing awareness to social issues such as sexual violence.

I am confident that in collaboration with the Commissioner for Federal Judicial Affairs, the National Judicial Institute, and others, the CJC has put in place an outstanding system of judicial education, one that is internationally recognized for its quality.

Unfortunately we've done a very poor job of explaining this publicly, of telling the success story, so I'd like to give just a few highlights about what I think is a success story.

In 1989 the CJC, in its annual report, identified a concern with regard to the treatment of sexual assault cases by judges. The report outlined that a new training program was needed on gender issues so that judges could address gender issues with justice and with sensitivity. Other issues surfaced—aboriginal justice, poverty, mental health, racism—and the CJC created at that time a committee on equality in the courts.

The CJC worked with scholars, with the CBA, with government, and with community groups and adopted, in 1994, a policy of comprehensive, in-depth, credible education programs on social context issues. In 1997 chief justices of the council committed to providing the time and opportunity for all judges to take part in social context programs. As these programs developed, the CJC directed the NJI to include social context education in all of its programming, and that's where we stand today.

To ensure that we continue on this path of comprehensive education for judges, the CJC adopted just last week a resolution for mandatory participation in the seminar for all new federally appointed judges. This is in addition to the long-standing policy of the CJC requiring all judges to devote at least 10 days to professional development each year.

I conclude by emphasizing that professional development is for judges an ethical obligation. It's something that we take very seriously at the CJC. Failure to uphold that ethical obligation may well require a review of the judge's conduct.

I think Bill C-337 provides an opportunity to increase transparency in this area. The CJC has some ideas about the proposed legislation. For example, we think that the objectives sought in proposed subsection 2(2) would be met more effectively by requiring candidates for the judiciary to sign an undertaking on their application form to abide by CJC policies on judicial education, something that we will propose to the minister shortly.

I would also respectfully suggest to the members of the committee that if you want any views, advice, or suggestions when you enter the clause-by-clause review, I am at your disposal.

I look forward to your questions.

I would be pleased to answer any questions you may have.

8:55 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Thank you very much.

Ms. Kent you are next for five minutes.

8:55 a.m.

Adèle Kent Executive Director, National Judicial Institute

Merci.

Good morning to you all. Thank you for allowing the National Judicial Institute the opportunity to come here to give you some information about judicial education in Canada, an initiative we're just starting with respect to sexual assault training.

Before I do that, I want to say a couple of things to you that I think we likely all agree on.

First of all, when sexual assault cases come into the courtroom, myths and stereotypes risk impeding the judicial process. These risks, we know, persist despite Parliament's effort at amending the Criminal Code and the guidance we have from the Supreme Court of Canada.

The dialogue that Bill C-337 has begun, along with the work this committee has done through your report on violence against women and girls, is a dialogue that the NJI welcomes. When sexual assault trials go wrong, the consequences, we know as judges, are serious for everybody involved.

For me, judicial education is the preventative key to these mistakes' being made. We know that errors will be made. There is appellate review available, but the real way to avoid the trauma that can result from appeals and retrials and that sort of thing is judicial education.

Bill C-337 proposes measures to improve the justice system when dealing with allegations of sexual assault. The NJI applauds the spirit of the act. We have some concerns about some of the methods, and I'd be happy to answer any questions about that in the question period.

With those two things said, let me get to an explanation of how we train judges. I'm going to speak first about federally appointed judges. There are two ways they get training.

First of all, almost all federally appointed judges attend NJI training in their court-based program. That's local to their various courts. Second, in addition, most of these judges also will attend one of the nationally planned NJI courses that we put on.

We know that the courts themselves also do some training. We also work closely with the Ontario Court of Justice, which, as you know, is the largest provincially appointed criminal trial court in the country. Along with the Canadian Association of Provincial Court Judges and the Ontario Court of Justice, we run a new judges school for provincially appointed judges. In all, last year NJI ran 180 days of judicial education.

NJI has been training judges about the dangers of rape myths and stereotypes and the complexity of sexual assault trials for years. Sexual assault trials first are tackled in new judges school, but that training is available throughout judges' careers, either in stand-alone programs that address sexual assault trials or as part of broader training in criminal or evidentiary programs.

Gender-based violence, equality, and discrimination issues are key parts of our broader social context programming. Social context requires judges to take into account the context of the cases they hear and not be influenced by attitudes based on stereotypes, myths, or prejudice. Because of these and other programs, I'm proud to say that we are a world leader in judicial education.

Judicial education must be led by judges; we work with judges throughout Canada to plan our programs. But it's not just judges. We call on academics to provide judges with their legal and social scientific scholarship and information about the impact of our decisions on society broadly. We also call on members of the community. Input from them ensures that NJI's goal of teaching judges the context of the people we serve is brought to the judges.

For sexual assault training, we have worked over the years with police, victim support workers in domestic and sexual assault violence, psychologists and psychiatrists, members of the indigenous community, and other diverse communities, just to give you some examples.

With all of this, can we do more? Absolutely we can.

First, going forward we want to share more information with Canadians about judicial education.

Second, NJI was pleased with the acknowledgement in the recent budget that money is necessary for the education of judges, to make that education even more robust.

Last week, NJI received additional funding from the Canadian Judicial Council. The plan with that money is to fund some videocasts on sexual assault trials, which will be put on our website, thereby making them available to all Canadian judges. I would be happy to explain more about this project to you again during question period.

With that, thank you very much for the opportunity to appear here today.

9 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Excellent.

Thank you very much.

Now we'll go to Marc for five minutes.

9 a.m.

Marc Giroux Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs

Madam Chair, thank you for this invitation and the opportunity to make a few remarks on Bill C-337.

I am the deputy commissioner for federal judicial affairs and I am now also fulfilling the role of commissioner.

Before commenting on Bill C-337, I would like to speak briefly about the role of the commissioner for federal judicial affairs. Pursuant to the Judges Act, the commissioner acts as the deputy of the Minister of Justice in administering part I of the act, which speaks to the appointment, compensation, and benefits of judges.

The commissioner has other responsibilities, which include, under subsection 74(1)(d), to do other things the minister may require for the proper functioning of the judicial system in Canada. This is where our office is delegated the role of administering the judicial appointments process on behalf of the minister. I would be pleased to explain this in greater detail if there are questions later.

Essentially, our role is to prepare the list of judicial vacancies, oversee the application process, support the 17 judicial advisory committees that assess candidates, and prepare for the minister a list of eligible candidates from which to appoint. Because of the principle of judicial independence, the commissioner and the office are also independent from the Department of Justice.

I would now like to speak to the issue at hand, Bill C-337. Let me first say that, personally speaking, it is completely fair and appropriate, in light of certain cases, that questions be asked about the training of judges in sexual assault law. I certainly understand your interest in the issue and I think the objective of the training is entirely valid and important.

Actually, the issue at stake is finding out the best way to achieve the objective. As part of your discussion on this, we are of the opinion that this deserves some considerations and I would like to highlight two practical points.

The bill, as it currently stands, would have those who wish to become judges complete education in the area of sexual assault law before they are appointed. In the administration of the judicial appointments process, our office receives over 500 applications per year generally. This year we have received 700 applications in less than six months. If education is to be provided before applicants become judges—that is, during the assessment process—and to a large number of candidates, our concern is that it will be more difficult to ensure they are properly educated, and that such training will not be exhaustive enough.

The important priorities of, on the one hand, ensuring an efficient assessment process for candidates, and on the other, ensuring that candidates are properly educated in the area of sexual assault law may come into conflict, and one or both of these priorities may suffer as a result. The effects in essence could be twofold: the assessment of candidates may be delayed, and on the other hand, the education candidates receive on sexual assault law may be less than adequate.

If the objective is to determine the best manner in which to educate judges in the area of sexual assault law, which we agree is very important and worthy, doing so at the assessment stage may not be sufficient. It seems it would be best to provide such education once judges are newly appointed. They can then sit down in a class and take a course—perhaps approved by the Canadian Judicial Council as the responsible body under the law, and designed by NJI and its experts—and that course can be longer.

There's a second point that I would like to very quickly raise. In the Judges Act, the commissioner is mentioned only in part III. The commissioner is never mentioned in sections 1 to 72 of the act. Part III states that he is the “deputy of the Minister”. If the bill is passed as is, however, anyone who's appointed judge should have completed, to the commissioner's satisfaction, a refresher course on sexual assault law. That could create a potential conflict between the commissioner and the Minister of Justice, if the two have different opinions about how that training should be achieved. While in all other cases under the act, the commissioner acts as the deputy of the minister, with the bill, he would have a new responsibility independently from the minister, and as part of an appointment process that is not set out in the legislation. That potential conflict should be avoided.

These are my remarks, Madam Chair.

Thank you very much. I would welcome any questions.

9:05 a.m.

Conservative

The Chair Conservative Marilyn Gladu

Thank you very much, that was great.

All right, we're going to begin our questions with Mr. Fraser for seven minutes.

9:05 a.m.

Liberal

Sean Fraser Liberal Central Nova, NS

Thank you very much, Madam Chair, and to our witnesses for being here today.

Mr. Giroux, perhaps I'll start with you.

You highlighted essentially a capacity problem at the end of your testimony, to say that we might backlog the system and jeopardize the quality of the training if we train before appointments are made. I take it then, that it's your view that we would still be able to provide adequate training post appointment. There's no way that we'd put that in jeopardy.

My concern is really around the jurisdiction of the federal government to train a judge, without violating the principle of judicial independence, after they've been appointed.

Could you perhaps offer some comment on that?

9:05 a.m.

Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs

Marc Giroux

Well, I can offer some comments. I think my esteemed colleagues might have some views as well.

I don't know that I want to speak to how the federal government may impose this upon judges. I can speak to the fact that at the current time, with the process that is now in place, the training obviously occurs once judges have been appointed. That is because of the principle of judicial independence.

There is a system in place to allow for such training, and to ensure that it's available to all federally appointed judges and provincially appointed judges, that it is adequate, and that it is well provided.