Status of Women Committee on April 11th, 2017

[Sean Fraser, Liberal, Central Nova, NS]

In the interest of time, before we give an opportunity to the other witnesses, I was very excited when I saw this this topic come up, obviously with Justice Camp being in the news, and Judge Lenehan's decision in my home province of Nova Scotia. It feels like there's something we can do to boost public faith in the justice system in Canada, starting with judicial education.

If we can't do it without putting into jeopardy the process of appointing judges or interfering with your capacity, is there something we can do pre-appointment? It could be to perhaps require that judges disclose the training they have taken during their application? Potentially it could be to put into legislation an independent appointment process that would bring back, permanently, the highly recommended category that you described during the list process.

[Marc Giroux]

I think Mr. Sabourin highlighted a suggestion earlier, or he may explain that further later on. To ensure that newly appointed judges receive proper training, in whichever area, there could be an undertaking by candidates in the questionnaire that they fill out to become judges. This could certainly serve to oblige them, if they are appointed, to take up that training.

[Sean Fraser, Liberal, Central Nova, NS]

With regard to my first question about whether the right way to do this is to provide training after the appointment has been made through the CJC and NJI, what are your thoughts respectively?

[Adèle Kent]

I worry about training in the pre-appointment process being effective.

When you ask what the federal government can do, I suppose I would turn that back on us and say, what can we do to give you confidence, to give Canadians confidence, that once judges are judges, they are being trained in sexual assault training and all of the other training that is connected with gender-based violence?

I have thought about it a lot over the past year. These matters have come into the public eye because of the trials that we all know about. I think we can be more transparent. That way, we can give more information about what we were doing. Allow Canadians, allow the academics, who we know work so rigorously and think about these issues so much, to know what we're doing and provide whatever insights they can.

From the perspective of the NJI, that would be my answer.

[Sean Fraser, Liberal, Central Nova, NS]

I find this a bit surprising, given the preconceived notions that I had coming into today. You're suggesting that the problem is more one of communications and transparency then an absence of training for judges.

[Adèle Kent]

One of the problems is transparency.

As I've said before, I think we can do more as well in terms of the training. We have good training. We have training in sexual assault, how to manage trials, the social context around the people who come into our courtrooms, but I think we can do more.

[Sean Fraser, Liberal, Central Nova, NS]

Mr. Sabourin, on the issue of the appointments process again, personally, patronage appointments rub me the wrong way, at every level. I think a Liberal, a Conservative, an NDP may very well deserve a position, and they should be appointed if they do. However, it shouldn't be their ticket to to that position, depending on which government is in power.

Do you think that making the process of appointing judges more independent would help lead to a higher quality of judge, and requiring that they disclose training that they have in areas of interest would be an appropriate way to improve the quality of judges and the public faith in the system?

[Norman Sabourin]

I'd say the short answer is absolutely yes. The proposal that I mentioned in my opening remarks, which we'll make to the minister shortly, that candidates be required to make an undertaking that they will abide by CJC policies on judicial education and tell us more about their training is very important.

On the second part of your question on the appointment process itself—and I'm completely non-partisan; I've been a public servant for 25 years—I think the changes to the judicial advisory committees, JACs, that have been made recently are very positive. The members of the JACs now include three members of the public. They are half composed of women or a majority of women, and members of the JACs receive training on the importance of being aware of diversity. They watch a video by the chief justice of Canada about the importance of their work. So absolutely, that first step of the process is a critical part. The more independent the appointment, the better the candidates down the road.

[Sean Fraser, Liberal, Central Nova, NS]

To piggyback on that, is there a way that we can legislate that independent process into this bill, for example? Does it require a separate piece of legislation, or is it the will of the government of the day to do it the right way?

[Norman Sabourin]

I'll leave the government of the day to answer. There are issues of judicial independence that arise from some of the provisions of the bill. I don't want to beat around the bush. It's clear, and I heard the sponsor of the bill say that, essentially, there may be an attempt to do indirectly what you cannot do directly, so we have to be careful with that. But I think there's a way to meet one of the key objectives of the bill, which is an undertaking for training, as opposed to mandating candidates, which—I share the commissioner's view—would be rather difficult to manage.

[Sean Fraser, Liberal, Central Nova, NS]

We're out of time. Thank you very much.

[The Chair, Conservative, Marilyn Gladu]

Excellent.

Now we're going to go to my colleague, Ms. Harder, for seven minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Justice Kent, my first question is going to come to you.

It's my understanding that right now there's no uniform protocol in terms of judges' training or that transition from being a lawyer to being a judge. When a judge gets appointed, can you help me understand exactly what that transition period looks like for them?

[Adèle Kent]

First of all, there is now the mandatory new judges training, but I think it's much more than that. When a judge gets appointed—and I'll speak about federally appointed judges because we work mostly with them—generally speaking, they are assigned a mentor in their court. When they first arrive at the court, their chief justice will give them some mentor on the court of senior judges. In my court, I know, you often get two because of the different areas of law.

The new judges school is run twice a year, fall and spring, and they attend that. After that, you're quite correct, there is nothing formalized in place for a plan of education for the judges. The recommendation of the Canadian Judicial Council for years has been that judges, in their first five years, have a plan of education. I can tell you that a proposal was made by the NJI at their last council meeting for us to incorporate personal education plans for each judge.

We'll start with the new judges as they're being appointed. Over a period of time, we hope that every judge has a plan, particularly for their first five years, that suits their needs, given the kind of practice they have, the kind of court that they're coming into, and the needs of their court.

[Rachael Thomas, Conservative, Lethbridge, AB]

Ms. Kent, I'm going to jump on that then. With regard to that, I understand that a plan can be put in place, but who makes sure that plan is followed through? Who keeps track of registration records? Who keeps track of whether or not they even show up for school? I can imagine there are circumstances that come up that prevent them from being able participate. How do we make sure that there's follow-through then? Where is that transparency mechanism? That's really, ultimately, my question.

[Adèle Kent]

Which judges go to the training is really up to the chief justices, and so Mr. Sabourin may have something to say. But we hope, as we institute this plan, that we will have a more formal way of assisting the judges, reminding the judges that this is a course we recommend, and so on and so forth, and working with the chief justices to assist them in keeping those plans in place.

You're, again, absolutely correct that sometimes life intervenes. For a judge, that often means a jury trial that has gone on longer than planned or a reserve judgment that must get out because it's an emergency, it's a family law matter, and there needs to be a decision. Subject to those kinds of things, where a judge may not be able to attend a course, we hope that, working with the chief justices, we can have a more formal process to have that education take place.

[Rachael Thomas, Conservative, Lethbridge, AB]

Ms. Kent, you have to forgive me. It seems rather curious to me that this just became mandatory this week, in light of this bill coming out at this point in time. Up to this point, there haven't been any records kept. There hasn't been any transparency. There hasn't been any accountability with regard to these judges actually receiving the training that they require to preside over the cases that they're given.

Now, a part of the mandate of the Canadian Judicial Council is this: “to promote efficiency, uniformity, and accountability”.

I'm wondering, Mr. Sabourin, if you can comment with regard to accountability. Where is this transparency mechanism?

[Norman Sabourin]

Madam Chair, I can tell you that the accountability rests first and foremost with the judges and also with their chief justice.

I'd like to explain, too, what happens when judges are appointed. First of all, I write to them and I remind them of their new ethical obligations, their professional development obligations. I tell them about the new judges' seminar, and I tell them they should attend. They then get a letter from the director of the National Judicial Institute that provides the dates and the registration information, and an offer to work with them to develop a personal education plan.

Finally, and very importantly, that chief justice will clear that judge's calendar to attend the program, will assign a mentor, as Justice Kent mentioned, and will make sure that the judge in question is not going to take a criminal jury trial as a first assignment if he or she has never participated in that as a lawyer.

The accountability rests, as it properly should, with the chief justices and the judges themselves.

[Rachael Thomas, Conservative, Lethbridge, AB]

So, for the chief justice and the associates, based on my research, there's no transparency mechanism there in terms of how they oversee the judges under their care, or in terms of how they launch training programs or education programs. There's no uniformity or conformity to it. So, if you were a chief justice, you really could do absolutely nothing and that would be totally fine. That's my understanding. Is that correct?

[Norman Sabourin]

I can tell you that in my 13 years at the CJC, I'm not aware of a single instance of a newly appointed judge who didn't attend the seminar for newly appointed judges; and if I were to discover that, I think it could very well become an issue of judicial conduct. The accountability mechanisms are there. The transparency exists by virtue of the fact that judges' decisions are public and the appeals are public.

In terms of further transparency, the CJC is very pleased that budget 2017 has identified funding to do some of the things we've wanted to do for a long time, which include being a lot more transparent, as Justice Kent noted, with respect to the number of seminars, the curriculum for judges, and so on.

[Rachael Thomas, Conservative, Lethbridge, AB]

So Mr. Sabourin—

[Norman Sabourin]

I'll just conclude with this. Some people have called some of the provisions of the bill an attempt to have a “name and shame” provision; and I think there could be a real issue with trying to identify which judges take which courses at which time, to then criticize their decisions on that basis. That could be a real issue.

[Rachael Thomas, Conservative, Lethbridge, AB]

With regard to the element of transparency, would you be willing to be transparent about how many people are taking training and what types of courses are being offered?

[Norman Sabourin]

I think that's one of the objectives we want to achieve, but we, the CJC, believe there could be an issue of independence if you try to then link that with the results of the decisions of judges. So, yes...a curriculum for judges, number of courses, number of judges.... I'm very pleased to say that for this current fiscal year, the CJC has approved attendance for about 907 federally appointed judges to educational programs, and when we know there are 1,100 judges across the country, that's a pretty high participation rate. We'd like to make that kind of information publicly available.

[The Chair, Conservative, Marilyn Gladu]

That's your time.

Now we'll go to Ms. Malcolmson for seven minutes.