Status of Women Committee on April 11th, 2017

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Madam Chair.

Thank you also to the witnesses.

The bigger picture to this story is that Canadian society is working very hard to remove the taboo about blowing the whistle on sexual assault. We've had headline after headline for decades, but especially in the last six months, around the way police are handling complaints.

Obviously, it's intimidating for victims to come forward. Now to have these headlines the last couple of months on the rare, but absolutely terrible, conduct of a couple of judges.... I think we're all worried that this is going to have an inhibiting effect on women coming forward and asking for help. The few cases that actually get to court if they're handled in this way is a terrible headline, and we just can't afford to have this as a country.

It's great that we're having this conversation right now. I'm reassured at some level to hear about the work that you're doing behind the scenes that, as you say, we don't see. At the same time, if it was going well, then we wouldn't have had those headlines, so I have two groups of questions.

One, how does your work get at the judges who are already appointed, who are already in the system? They're going to continue to have an impact on victims and on court cases. That's one piece. I'd love to know what you can do at an ongoing training level, not just at the point that appointments are made. I invite any of you to weigh in on that.

I'll circle back now to my first question, which is for Ms. Kent.

With regard to the content of the training, you talked about the transparency. On the New Democrat side, we've been hearing from women's organizations that they want to see what that training is, and they'd like to have the ability to influence it. They've been working for decades in this field, and they'd like to collaborate a bit on the content.

Can you let me know how we can see what the course material is so that everybody in all elements of the women's protection movement and social justice movement can be reassured that we know what content the judges are seeing? Is that something you're able to provide for this committee?

[Adèle Kent]

First, let me start by saying that, as I said in my remarks, we have worked with a variety of community members, including some women's groups, throughout our training on social context, so it has been there.

We've also worked with many academics who work specifically in this field. We're confident that the training we're providing the judges in this area is good training.

In terms of providing material, I guess I'd say that I wish we were having this conversation about six months from now. It's become apparent to me as I've taken this job that we need to look at the amount of material that we make available to the public so they can have the confidence that the judges, throughout their careers, are getting the training they need.

I have constituted a committee of judges to look at the material we produce and to determine what we can make more publicly available so people can take a look at it and come to their own conclusions. We'd be happy to hear from people about where they see deficiencies. This is something we're currently looking at doing.

In terms of past material, much of that material was created and published before my time and under conditions of author confidentiality, so I have to be careful about that. Certainly, going forward, it's an initiative that we have to undertake.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

For this study, is there anything that you're able to undertake to provide so that we can get on the record a picture of the course content material?

[Adèle Kent]

Well, right now, you have the curriculum overview that we provided to you today. That gives you the nature of the courses that we have. It doesn't give you a list of all the courses that we're doing in 2017 or 2018, that sort of thing.

As we sort out, I guess I'd have to determine where we can give information and where we still need to be careful. I do want to say to the committee that some of the training that we do with them in social contact is hard training for them. They're being asked to look at the kinds of attitudes that they may have come to the bench, so we have to create some safe space so that it is effective training.

I just want to say now that I want to be careful about how we do that so that we undertake to be more transparent, but we maintain the effectiveness of the training that we have.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

This document is a list of course offerings, as I see it. Can I leave it that if there is anything that actually gives us the blow-by-blow...? If you're able to provide it to the committee, it would be of value to us.

[Adèle Kent]

Sure.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

I understand that if it's six months from now, we'll have to have a different study, but it really would be helpful now.

Let me go back to my second question. Is anybody talking about how to get at judges who are already in the system, so that we are able to make sure they are issuing judgments and treating victims with respect, so that we don't get more of these terrible headlines such as we've had in Alberta and Halifax?

[Adèle Kent]

We have been offering courses in sexual assault training, stand-alone, within broader courses; cases in giving oral judgments; in good communications with all the people who come into the courtroom. These aren't programs just for new judges; these are for judges at any stage of their career. The training is available.

We work with chief justices, because they know what needs there are in their jurisdiction. For example, in one jurisdiction last year, because they had a number of new judges appointed and wanted to ensure that those judges had specific training in sexual assault trials, one of their two-and-a-half-day seminars was on sexual assault trials. That training is available throughout the judge's career, and we would work with the Canadian Judicial Council if a chief sees a particular need to have those judges educated.

[The Chair, Conservative, Marilyn Gladu]

Thank you.

We will continue with Mr. Serré for seven minutes.

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you, Madam Chair. I will be sharing my time with Ms. Ludwig.

My thanks to the witnesses for the information they shared with us. That's very good. Thank you as well for saying more about the appointment process, which was changed.

Here is my first question, Mr. Sabourin. You indicated that there are a lot of positive aspects. Do you have another recommendation to improve the process, or are you satisfied with the existing process and confident that it will greatly improve the situation for future judges?

[Norman Sabourin]

The CJC has provided advice and recommendations to the Minister about the appointment process. We are very pleased that, overall, the council's suggestions and recommendations have been adopted. I think the process has been improved. However, there is room for further improvement. Among other things, we would like to propose to the minister changes to the application, including—as I mentioned—a commitment to take the council's professional development courses. There are other issues with the application form that we might want to raise, and we will soon be suggesting that the minister do so.

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you very much.

You have also noted measures in budget 2017 that are positive and will be very useful. In addition, you mentioned the non-partisan work the committee has done to enrich and continue the conversation.

Mr. Giroux, with the resources in your office, would you be able to implement the proposed changes in the future?

[Marc Giroux]

Following the changes or amendments that would be made by the bill, the short answer is no. We administer 17 advisory committees across the country. We have staff members attending every meeting of those committees. There are about 50 of them a year. So we have staff members constantly supporting those committees.

Adding another training component would therefore require additional resources.

[Marc Serré, Liberal, Nickel Belt, ON]

Thank you very much.

My question is for Ms. Kent.

You said that judges must be responsible for their training, that it's an independent and important process, and that measures have been taken.

Mr. Sabourin, I think, and Mr. Giroux, you have expressed some concerns about Bill C-377. Ms. Kent, you have also expressed some concerns.

People don't think this bill is necessary. The party of the mover of the bill, a former minister, was in power for 10 years. Here is what I would like to know about the changes under Bill C-377. Is this bill necessary even though there are measures already in place, such as the ones you mentioned in terms of the appointments, budget 2017 and training?

I just want your comments about the bill itself, because people say that it's not absolutely necessary.

[Adèle Kent]

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

[Marc Serré, Liberal, Nickel Belt, ON]

Yes, great.

[Adèle Kent]

I have a couple of concerns about the bill. I've already mentioned that I worry about the effectiveness of training lawyers who might become judges later on, if you really want to make a difference. It is important.... The real effectiveness of judicial training is that they are judges. They know they're in the seat. They're sitting there. They're practising because—this is a hypothetical situation in one of our courses—they know that next week they're going to have to do it. I worry about the effectiveness, if that is what the bill is aiming for.

The second concern I have is with respect to written reasons. Now, I appreciate that Ms. Ambrose has acknowledged that there are audio recordings and that may solve the issue of written reasons, but I do worry, knowing the heavy workload of judges now and the additional workload that doing written reasons has for every judge, and, most importantly, the fact that it would delay the litigants' knowing the outcome of their cases. We do whatever we can to ensure that decisions are rendered quickly.

If the section dealing with written reasons allows for audio recordings to be available, that makes a lot more sense. At the end of the day, I think it would ensure that the litigants find out the results of their cases earlier.

In terms of whether it's necessary, I'm not sure that, as a judge, I should go there, but those are some concerns that I have.

[Marc Serré, Liberal, Nickel Belt, ON]

The last two minutes will go to Ms. Ludwig, please. Thank you.

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

Thank you very much.

I found your presentations very interesting and informative. Thank you for all the work you're doing in terms of the training of judges, and for sharing that with us.

In looking at the current form of Bill C-337, in your experiences, what would be the unintended consequences of this current piece of legislation? You've identified some of them. If it were passed, what might be some of the unintended consequences that we want to avoid?

[Norman Sabourin]

Madam Chair, I think that one of the consequences of great concern is one I alluded to earlier, which is to attempt to do indirectly what I think cannot be done directly—try to identify which judge decided which case and in what manner, and whether he or she was trained in “sexual assault law”. At the CJC, we see, first of all, taking a very comprehensive approach to judicial education. Second, we have to respect the fact that, in Canada, erroneous decisions are dealt with through the appeals process, and judges who engage in inappropriate conduct are dealt with through the discipline process. That's part of the justice system we have in Canada.

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

Okay, thank you.

Justice Kent, go ahead.

[Adèle Kent]

I'll take a bit of a different tack. Our training is organized and planned by judges and they do it as volunteers, so they're working on their lunch hours, their evenings, their holidays, and their non-sitting weeks to plan the education we have. That's why it is so relevant to the judges who take the education. I want the judges to do the planning, because they enjoy it and they're enthusiastic. We know the judges come to our education because they're enthusiastic about it.

For the very reasons that Mr. Sabourin mentioned, I'm worried that this kind of thing would change the culture of the collegial education that we have now.

[The Chair, Conservative, Marilyn Gladu]

Very good. That's your time.

We now go to Mrs. Vecchio for five minutes.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much.

I'll start with Ms. Kent, if you don't mind.

I'll start with a quote from last week on CBC News: “Kent argues all new judges at every level would benefit from more comprehensive education.” You were quoted as saying, “When I became a judge 23 years ago, I had no idea how to grant a divorce to someone because I had never done family law.”

When we're looking at this sort of thing and talking about the courses, we're talking a lot about how in-depth the courses are going to be. How often are you going to train them? Are you training them on everything specifically? I recognize there is a mentor, but in smaller courts you may not have all of those things. Can you just go a little further on that, if you don't mind?

[Adèle Kent]

Yes. Maybe this would be a good time for me to talk about the initiative that we're planning as a result of the new funding we got. My plan is that we do a series of videocasts for judges, which would be on our website for them to watch. There are probably about 14 videocasts, dealing with all of the various subjects: issues of consent in sexual assault trials, production of third party records, rape myths and stereotypes, the whole gamut. They would be created by academics who are experts in the field, as well as senior members of the judiciary. Every judge who is appointed would watch those, from start to finish. Then, as you do your work as a judge, you would be able to go back to them if there was a specific issue.

It doesn't stop there. We have to look at the education that judges get face to face, particularly in areas of social context and communication, because those areas are so important in this training.