Status of Women Committee on April 11th, 2017

[The Chair, Conservative, Marilyn Gladu]

Very good.

We'll go to Ms. Kwan for seven minutes.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you to all the witnesses as well for your presentations.

As we're talking about the issue around resources, it certainly strikes me that resources are needed on all fronts, whether it be for written judgments or for training, because you're going to be stretched at every end.

I want to explore this issue a little more in terms of justice, because it is a question of priorities and where you place those priorities to ensure that justice is served. In that context, here with the bill we're talking about the suggestion of written requirements, written judgments in training.

With respect to this bill, what other systemic problems exist in our system where we need to ensure changes are brought in to allow women who face assaults or violence to be able to get the justice that they're seeking? This is the system really all the way through from reporting, as was mentioned. The cases of conviction are very low, and there's a question as well about whether people will even come forward to report the incident.

I would like to start with Professor Koshan, if I may, on this issue. What other actions do you think are necessary to ensure that justice is in fact served?

[Prof. Jennifer Koshan]

You're right, the research has shown that there are barriers to seeking justice in sexual assault cases that start right from the time the complainant decides whether she's going to go to the police or not. For me, one of the things that is very important for us to think about is training at all stages of the process: training for police and—we've heard Ms. Hendel speak to this need—training for crown prosecutors. I think those are a crucial part of the system in addition to training for judges.

I will just leave it there for now and let my colleagues address other things that they may want to say.

[Ursula Hendel]

I completely agree. You've heard me make my pitch for training for prosectors, but I think the front lines are on the police. If victims don't feel safe enough to report in the first place, all the training that the judges and prosectors have will go for naught. There's a complete, holistic need to understand better the perspective and reality of sexual assault.

I like the emphasis on the social factors, as opposed to the principles of evidence and the special rules that we have in the Criminal Code. I think we do a better job there. Where we really fall short is in understanding the social factors.

[Prof. Carissima Mathen]

I have two points.

First, we need resources to monitor and collect statistics about decisions that are being made at every stage of the process. There was just this incredible story that revealed these unfounded rates. That took so much independent investigation by a very committed journalist, whereas I think it would be more helpful to have those kinds of statistics collected regularly.

The second point would be the need for structured support for complainants, to provide them with information about the process and what they can expect. As Ms. Hendel said, the crown is not the complainant's lawyer, although that may be a perception that can then create further damage.

[Prof. Elaine Craig]

I agree with everything that Professor Koshan said, but I will add that a lot of the initiatives that could improve the experience for complainants—and to be clear, I think there is decent research suggesting that fear of the criminal justice system is one of the reasons people don't come forward—could be done at the provincial level, as a result of the division of powers. But at least some aspects of this, with proper resources, could be done by the federal government. I have lots of ideas about what the provincial governments could do, but this is a clear example of where the federal government could act, at least in part.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

Just to bring that further then, my next question is: should this be mandatory training at all the different stages?

I'll start with you, Professor Craig.

[Prof. Elaine Craig]

Again, like I said, the move to make training mandatory for new judges on the part of the CJC is recognition of the need for exactly this type of training. Given that the harms are unique, and given the complexity of this particular legal issue, I think mandatory training is needed. Also, given the fact that there are all sorts of people appointed to the bench who have no professional experience in this particular area of law, mandatory training is necessary.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

Could I just have a quick answer from everyone else?

[Ursula Hendel]

I think the only way to make sure that it will happen is to make it mandatory.

[Prof. Carissima Mathen]

There needs to be mandatory training, but respecting the jurisdictions of the various institutions, including the judiciary.

[Prof. Jennifer Koshan]

Yes, I support mandatory training as well, and I think it's important to recognize that what we're talking about here is trying to prevent errors of law from taking place. When we see it in that context, to me it's not a direct assault on the notion of judicial independence.

[Jenny Kwan, NDP, Vancouver East, BC]

I want to bring this up as well. In my own community, the missing and murdered women is a very big issue, something I've worked on for the better part of over two decades.

Related to that, of course, there are issues pertaining to the understanding of culture, and very much the issues of discrimination around different cultural groups. Aside from training in the area of sexual assault and the human aspect of it, as was mentioned—

[The Chair, Conservative, Marilyn Gladu]

Unfortunately, that's the end of your time.

We will go to Ms. Damoff, for seven minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

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

I want to talk about something a wee bit different. CJC talked about how just in the last month it made mandatory training for new judges. In terms of education, it's mandatory that new judges will be receiving it.

We also heard from a previous witness about changes that our government made to the judicial advisory committee to include diversity training and the makeup itself of that committee.

I want to talk about the importance of education versus the appointment of the judiciary and ensuring that we're making non-partisan, independent appointments to the judiciary. If we want to make systemic changes, will that help to deal with it? This bill and nothing we're looking at is requiring current judges to receive training. In the cases that we're citing over and over again, that have caused us all concern, caused all Canadians concern, about the decisions being made, they would not be touched by this bill. They're not being touched by anything that we can do because they're sitting judges.

Could you talk about the appointment process and the importance of that? You could each speak to that if you wish.

[Prof. Carissima Mathen]

At this point, I'll disclose that I provided assistance to the government in the drafting of the new questionnaire for the appointment of Supreme Court of Canada justices, which for the first time required candidates to fill out a lengthy questionnaire. At a social event, Justice Malcolm Rowe thanked me rather sarcastically for having done that. That has now been continued in an extensive questionnaire that's applied to section 96, the federal appointees.

That's been a somewhat unheralded earthquake in the world of judicial appointments in terms of what judicial candidates are being required to think about and present in terms of their current situation, their current location, how they see the achievement of justice, how their careers have affected that, and really being quite open in a way that's unprecedented.

My former colleague at the University of Ottawa, David Paciocco, was recently appointed from the provincial court to the Ontario Court of Appeal. His questionnaire is an incredible reveal into his journey as a judge. The fact they're being made public is a really important story to tell. It can only assist the committees to do the very challenging work of choosing from among many qualified candidates those who can best promote justice.

The innovations that have been done around judicial appointments, consistent with the current limitations, have been quite remarkable.

[Prof. Elaine Craig]

Diversity on the bench is a huge issue that has the potential to improve a variety of aspects of the process. It's still going to be a very narrow demographic, which is part of the point that Ms. Hendel made. Regardless of the pool, we're talking about a very narrow demographic of very privileged individuals. We're talking about a piece of legislation that's attempting, really, only to secure basic competency, understanding of legal concepts like the definition of consent, the way in which the rape shield provisions work, and the need to interrogate our own social assumptions about gender and sex. The shift in the appointments process should be celebrated, but I don't think in any way it should be considered an alternative to an initiative like this.

[Prof. Jennifer Koshan]

I agree with everything that's been said, but I would just add, in going to this point of complainants and their confidence in the justice system as it handles sexual assault cases, that it's very important that the bench represents the diversity of society. I think that will contribute to complainants' feelings of confidence and that of the public at large as well, and recognizing what Professor Craig said, that this needs to go hand in hand with training.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I will turn it over to Ms. Ludwig for the rest of my time

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you.

My question is to Ms. Mathen. We've heard from witnesses this morning, and from the questions that have been posed, that candidates should identify the areas of training that they've taken regarding sexual assault. On that, I have a couple of questions.

One is, they're not taking their training through the judicial institutes that we heard from this morning. How do we standardize that curriculum so we're actually comparing apples to apples?

Two, in talking with a number of people in the legal community, one of the concerns that they've identified to me is if the mandatory training is for new judges, what if a judge does not hear a sexual assault case for five or six years, in terms of the relevancy of that early training? Perhaps you could speak to that.

[Prof. Carissima Mathen]

In terms of the suggestion that they should indicate the level of their training, and then that feeds into the process, I think that's a practical way to ensure you have an understanding of what level the candidate sits at with respect to particular areas of law that are a challenge, are of current concern, and that the judicial appointments committee wants to take—

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Does the provincial body speak with, let's say, the judicial institute in terms of the curriculum content for the training?

[Prof. Carissima Mathen]

The training is offered at different levels for judges. When you are talking about going beyond that, I think you will have coordination issues, and it's probably going to fall to the federal government to ensure some level of consistency, and that's going to require resources. As far as continuing training is concerned, I think that's something that the Canadian Judicial Council and the National Judicial Institute have always promoted. Certainly, I participated in seminars for very senior judges of courts of appeal and so forth, and that's something that has been going on for a long time. I think they have expressed a commitment to ensuring that continuing training, and I agree that is optimal.

[The Chair, Conservative, Marilyn Gladu]

That's your time.

We'll go to Ms. Harder, now, for five minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Sure, thank you.

My first question here is for Ms. Koshan. I'm going to read a quote to you, and I would like your reflections on it. Dr. Margaret Jackson and the honourable Donna Martinson wrote that much more than a one-time attendance at an education program, such as a new judges program, is required. While new judge's school is a good start, they argue that competency requires ongoing, in-depth education throughout the judge's judicial career.

I'm wondering if you could just further comment on this, whether you agree or disagree, and why.