Status of Women Committee on April 11th, 2017

[Prof. Jennifer Koshan]

[Inaudible—Editor] the position, and I support the need for ongoing training. One of my experiences in working with judges on judicial education and training has been in the domestic violence context, and perhaps I can just give an example from that context. There's new research that's come to light recently about the effects of trauma on children. I participated in a session where judges were receiving information about that new research. I think we need to recognize that not only does the law change, but social context can change, research about things like trauma-informed approaches to sexual violence can change. I think for all of those reasons it's very important to support ongoing training for judges.

[Rachael Thomas, Conservative, Lethbridge, AB]

One of the decisions, of course, that was just made was with regard to now making training mandatory. I can appreciate that. I think that's largely due to public pressure, and so I congratulate the public on that. But one of the things that isn't mandatory is training for existing judges. They're just talking about incoming judges. What would your feelings be with regard to making training mandatory for all judges?

[Prof. Jennifer Koshan]

Here's where I think we do bump up against the principle of judicial independence. As I mentioned earlier, my view on that is that if training is aimed at ensuring that judges aren't making errors of law, that they're applying the law appropriately, and that they're not using rape myths and stereotypes in their reasoning, to me, that is still within the reasonable bounds of protecting judicial independence. We're simply asking judges to do their jobs with the best information available to them.

I don't think that means we're going to avoid things like, perhaps, appeals by accused persons who may feel that these new requirements for training, especially for sitting judges, may violate principles of judicial independence. We saw those sorts of appeals when the government made decisions around judicial salaries. I don't think we can be immune to that, or that we can ignore that possibility. My own view is that even ongoing training for sitting judges would be acceptable in terms of judicial independence.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much.

Ms. Hendel, you said that you are trained in areas of law but not necessarily trained in working with people. I believe it was you who made that statement.

Can you further comment on why this sort of training would be important?

[Ursula Hendel]

I think it goes back to what I said about how the trier of fact is supposed to assess credibility and reliability using common sense and ordinary experience. That isn't anything any of us are taught in law school. It's supposed to come to us naturally. That's a 500-year-old approach, and I think we've become better at recognizing that it's deficient, particularly when you are asked to judge somebody who has a very different background and perspective, and maybe a different culture, and who certainly comes from a different place than you do. It's not that easy to crawl under somebody's skin, necessarily, when you are sitting on the bench or when you are in your prosecutor's robes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Very quickly, can you comment with regard to training and making records known, for example, registration and participation rates, and those sorts of things? Is this a good mechanism of transparency for us to pursue, as a Canadian judicial system?

[Ursula Hendel]

I'm sensitive to the concern. There are risks. Certainly the last thing I would want to see is a ground of appeal generated as a result of some requirement that someone has indicated wasn't complied with. I'd be sensitive to the degree to which record-keeping is done. I think the idea is one of more than moral persuasion. If you recommend training, the resource reality means the training won't happen to the degree you want it to. Even if you strongly recommend training, we don't get trained unless we're forced to, and even then we're all scrambling to try to meet our mandatory requirements. But we meet them. Making it mandatory is a way to have it happen. As to how to check up on it, I think there are some risks.

[The Chair, Conservative, Marilyn Gladu]

That's the end of our time today, unfortunately. I want to thank all our witnesses today.

You were amazing. I appreciate all the work you're doing in this area.

I thank the committee for its great questions.

The meeting is adjourned.