Status of Women Committee on April 11th, 2017

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

We're looking at the participation rates, and I think this is a big thing too. You may have 180 days available for courses and things, but what is the actual participation rate of those people already sitting on the bench who will not be participating in the new judges school?

I know that even as members of Parliament we take an interest in things of that sort, but you're talking about time, the fact that they're volunteers, and all of those things. We recognize that society has changed a great deal, so are there any plans to make this mandatory? If not, why?

How great is this participation rate? Can you break it down to the different sectors, whether it's the criminal law for drugs or sexual offences?

[Adèle Kent]

Here, today, I can't break it down.

I'm going to turn it over to Mr. Sabourin for a minute with respect to getting the judges to go to the education, but in terms of breaking it down as to how much training there is in drug offences, homicide, and gender-based violence, I can't give you that today.

Generally speaking, after new judges school, we see that we have good participation from newer judges for up to five years in what we call the core courses, which are criminal law, family law, charter, and evidence. We see that after that, there continues to be good participation for the full-time judges in some of our more specific courses.

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

What is good participation? Can you define that?

[Adèle Kent]

I'm just looking at my director of education programming. I'm not sure that I can give you a number today—

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

Okay. If we could get a number to follow that up, that would be awesome.

[Adèle Kent]

—or some more indication. We'll see what we can do.

[Norman Sabourin]

If I might, Madam Chair, the council approaches this, really, from a policy perspective as opposed to as a mathematical issue.

Ethical principles for judges provide that judges must take reasonable steps to maintain and enhance the knowledge, skills, and personal qualities necessary for judicial office. Because of that ethical obligation, in part, the council adopted a policy many years ago that highly recommends—it's not mandatory—that judges devote 10 days each year to professional development.

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

What's 10 days? Is that eight hours or is that three hours?

[Norman Sabourin]

It's 10 days of training for a normal full day.

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

Okay, so nine to five, eight hours.

[Norman Sabourin]

As I mentioned, the CJC just adopted a policy for mandatory attendance by newly appointed judges, and we are discussing what else may need to be mandatory. I don't know how easy it would be to get the numbers, but I think most judges take very seriously that ethical obligation. They do participate in programs, and as Justice Kent mentioned, more senior judges will take more specialized courses so that they can manage complex commercial and criminal matters, and assist the court in getting its more difficult work done.

[The Chair, Conservative, Marilyn Gladu]

Very good.

We now have our final five minutes with Ms. Ludwig.

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

Thank you, again.

I just wanted to focus again with you, Mr. Sabourin, on the “name and shame,” and on how that might impact judicial independence. Could you expand on that?

[Norman Sabourin]

“Name and shame” is something I've read in the media.

I think that the issue before us—we can't beat around the bush—is that the judiciary must be in charge of judicial education. The reasons for that are, I think, quite clear and have been commented upon by scholars many times.

You can't have the executive branch dictating what exactly judges should do to maintain their professional skills, what areas of the law or other social context education they should or should not take. That would be very problematic from a judicial independence perspective.

I mentioned some concerns with the reporting requirements that would be proposed. They really seem to me to go to a method of trying to identify which judge decided which case having taken what education program.

I think that those issues must be dealt with in the normal manner through the appeal route and, if it's an issue of inappropriate comments or conduct, through the judicial discipline process.

I'm not sure that identifying that, let's say, the Court of Queen's Bench of Saskatchewan has seven judges, that they had 12 acquittals for sexual assault last year, and that three judges did not take a course last year means that there's a problem at that court. I don't think that you can draw those conclusions based on that kind of information.

I have to add something. This data, had we tried to collect it, is data that's in the possession of the courts. The administration of the courts is a provincial responsibility. Mandating the CJC to try to gather the data doesn't mean that the CJC can turn to courts and say, “We hereby require you to produce this data.” There is a practical issue there as well, which could be problematic in terms of federal jurisdiction over this.

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

Thank you very much for that.

Certainly in the media we've heard about some horrendous cases, and the outcomes from them have been devastating for survivors. In your experience, is the appointment process something that we should be more focused on than the mandatory training, considering that you're doing much of the training in the institutions within your own jurisdictions?

[Marc Giroux]

I can comment on some of this. The new process that the government put in place recently does a lot to remedy some of the gaps. The government called upon people to apply if they wished to become committee members on the judicial advisory committees. There's much more diversity now on these committees. The questionnaires are also longer and call for more information to be provided to committee members. It's a more transparent approach that has done a lot to increase diversity in the selection of eligible candidates. That will go some way in addressing some of these issues, but not all.

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

Certainly we can't control for individual biases. We all bring those forward. We can try to work with some legislation, whether it's the training that you're working with, but some element of that is going to be there.

On the staffing side, I have no experience with the judicial system whatsoever, so maybe, Justice Kent, you can respond to this. As a judge, how involved is your staff on the research side? Are staff members of judges involved with any kind of mandatory training on sexual assault?

[Adèle Kent]

At the NJI, we have a number of lawyers on staff. They're responsible for working with the judges to plan the programming, and they do a great deal of research. When we look at a course, they will consult with academics, do their own independent research, and then bring to the judges some of the information, ideas, and new work that's out there to help design the program.

In terms of education for judges' research assistants, and so on, I can only speak to my court. They are all provincial employees, so the training would be dealt with through the province.

[The Chair, Conservative, Marilyn Gladu]

That's the end of our time today.

Thank you, witnesses, for your experience and input. If there are answers or information that you think would be helpful to us, I invite you to direct that information to the clerk.

We're going to suspend briefly so we can let our witnesses leave and have our new witnesses sit.

[The Chair, Conservative, Marilyn Gladu]

I call the meeting to order again. We're ready with our second panel.

We're very fortunate today to have with us Carissima Mathen, who is an associate professor in the faculty of law at the University of Ottawa; Elaine Craig, who is an associate professor in the school of law at Dalhousie University; by video conference, Jennifer Koshan, who is a professor at the University of Calgary; and Ursula Hendel, who is the president of the Association of Justice Counsel. Welcome, witnesses.

We're going to start with your five-minute opening comments and begin with Carissima.

[Professor Carissima Mathen, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much. It's an honour to be here.

As a professor, I teach both constitutional and criminal law. Before joining the academy I worked for the Women's Legal Education and Action Fund, litigating cases affecting women's equality. I was privileged to have participated in decisions that shaped our current framework for sexual assault, which I regard as one of the most progressive in the world.

I support the spirit animating this bill. There is a clear need for the criminal justice system to provide greater assurance to women that judges and lawyers are sensitive to issues of gender-based violence and have the requisite expertise to adjudicate such cases fairly.

I'm going to focus my introductory remarks on the written reasons provision. I have only five minutes and several points, so I'll be brief on each of them. I'd just like to acknowledge from the outset that in thinking through these issues I benefited from discussion with Professor Michael Plaxtonof the University of Saskatchewan.

My first point is that judges should provide reasons for their decisions, and indeed in 2002, in a case called Sheppard, the Supreme Court of Canada recognized a duty of trial judges to provide reasons in all criminal cases, albeit not solely in written form. This duty is owed principally but not exclusively to the parties—the crown and the defendant—by virtue of the fact that each has rights of appeal that might be undermined if they cannot make sense of the verdict.

My second point is that some people have argued that written reasons are superior to oral ones, but it's important to note that both written and oral reasons are judged according to the same legal standard. What, then, is the written reasons provision intended to achieve?

Another way to think about it is, who is the duty of written reasons owed to? Is it the parties, the complainant, the public at large, parliamentarians, researchers, advocates? This question is important because different constituencies will want and need different things from reasons. Whatever interest is emphasized, that emphasis will have an impact on how this provision is interpreted.

My third point is that it is a frustrating element of criminal law that even in written reasons there may be limits to what one can reasonably expect trial judges to explain. In sexual assault cases this is most obvious in terms of how judges explain their assessments of credibility.

Obviously, judges must never resort to sexist myths and stereotypes; doing so is a legal error. Supplying written reasons may make it easier for the public to know when this has occurred. Even if a decision does not stray into that danger zone, however, reading a credibility assessment can be very unsatisfying. Such decisions often are based at least in part on demeanour.

The House of Lords put it this way, “Evidence may read well in print but be rightly discounted by the trial judge; or, on the other hand, he may rightly attach importance to evidence that reads badly in print.”

It can be very challenging to articulate why one witness is credible and another is not. As a result, appellate courts treat credibility findings with great deference. Simply requiring all reasons to be written out, then, without more, is unlikely to change the test that higher courts use to evaluate them and consequently may have little effect on what they actually say.

My fourth point is that the provision doesn't specify what happens if written reasons are not forthcoming or are not produced in a satisfactory way. Is it intended that a failure to provide adequate written reasons creates an additional ground of appeal? Could a defendant appeal against a conviction even if the judge has formulated reasons that are otherwise legally sound? What about the crown?

My fifth point is that I want to reiterate what Justice Kent said in the previous panel, that delays in criminal justice have become a matter of acute concern, so it's important to evaluate the benefit of this measure against the possible cost in delay, especially in provincial courts, which hear the majority of criminal cases.

Finally, if the aim is to improve public accessibility, it's not enough that reasons be written. They must also be published on accessible platforms. Currently there is no guarantee that written reasons will be published, and many are not. Courts and public databases may require additional resources in order to ensure this necessary step for true accessibility.

Thank you again for the opportunity to appear. I look forward to your questions on this or other aspects of the bill.

[The Chair, Conservative, Marilyn Gladu]

Excellent. Thank you.

Now we'll go to Elaine Craig for five minutes.

[Professor Elaine Craig, Associate Professor, Faculty of Law, Dalhousie University, As an Individual]

Thank you for the opportunity to speak with the committee today.

I teach in areas of constitutional law, evidence law, and legal issues concerning gender and sexuality. My main area of research is indeed sexual assault law. I'd like to focus my comments today on the third part of the bill as well, on the requirement for written reasons in sexual assault cases. My comments are based on my research in this area. I'm going to suggest to you three important justice interests that I think would be served by requiring written reasons in sexual assault cases.

The first, which Carissima touched upon to some extent, is transparency and accountability. I think it's inarguable that written decisions provide a degree of transparency and public accountability that's not available with oral decisions. There are several recent examples of cases that involve conduct or reasoning by trial judges that are problematic, but that only came to light because a reporter happened to be in the room and decided to report on the case, or the crown appealed.

There have been three very high-profile cases of this nature in recent memory. I'm referring here to Wagar; Rhodes, which involved Justice Dewar of Manitoba; and most recently, Al-Rawi, which was the recent Halifax taxi driver case. But there are others.

So, absent the crown's decision to appeal or a journalist's decision to report, sexual assault cases involving oral decisions provide almost no opportunity for scrutiny by researchers, legislators, or the public. For the most part, we don't even know they're occurring.

In its 2008 decision, in a case called Regina v. R.E.M., the Supreme Court of Canada identified public accountability as one of the three reasons that judges are and should be expected to issue reasons, albeit they weren't necessarily referring to written reasons, in criminal trials. So R.E.M. followed Sheppard, which Professor Mathen mentioned.

The degree of public accountability is greatly diminished, if not eliminated, when researchers, legislators, and the public have no way of accessing these reasons. You might say, yes, but that's true of any legal proceeding. My response to that, were resources unlimited would be, yes, indeed it would be desirable to require written reasons in all cases. Resources, of course, are not unlimited. So, why single out sexual assault trials?

I suggest to you that there are different considerations that play in the context of sexual assault cases. One is that, arguably, we are at a crisis point in terms of the public's confidence in the criminal justice system's ability to respond appropriately to allegations of sexual assault. Given this circumstance, in the sexual assault context in particular, we should ensure that judicial reasoning is as accessible as possible. Requiring written reasons would be the most effective way of making the process accessible and transparent.

There are other factors that make sexual violence and gendered violence more broadly, I think, different, including the role that stereotype sometimes plays in judicial reasoning involving sexual assault cases, as well as the nature of the potential harm both to the complainant and the accused at issue in these types of reasonings. That's my first point.

Second, requiring written decisions also has the potential to ensure more thorough, careful. and well-reasoned judgments in what is undoubtedly a very sensitive and difficult area of law. So, I'll use the example referenced in the Canadian Bar Association's brief to this committee, which again is Al-Rawi, the recent Halifax taxi driver case.

I've just finished studying the trial record in Al-Rawi. While Judge Lenehan's statement that “clearly a drunk can consent” was not legally incorrect, it was carelessly included in an oral judgment. The CBA, quoting Professor Sheehy in their brief, described this part of his judgment as “a slip of the tongue”. I think it's reasonable to suggest that in a written decision, he would have been more careful.

Third, requiring written decisions may also reduce what are in some cases shocking legal errors. Legal errors and overturned verdicts are costly and burdensome on all involved parties, but I think the costs to complainants in sexual assault cases imposed by judicial errors are greater. Imagine having to go through the process of testifying as a complainant in a sexual assault case not once but twice.

[The Chair, Conservative, Marilyn Gladu]

I'm sorry. That's the end of your time. We'll get back to you on the questions.

We're going to go now to Jennifer Koshan, for five minutes.

[Professor Jennifer Koshan, Professor, Faculty of Law, University of Calgary, As an Individual]

Good morning. Thank you for the opportunity to speak to the committee this morning.

You have heard that I'm a law professor at the University of Calgary. I want to note I'm also a former crown prosecutor, and I was one of the complainants in the Robin Camp matter before the Canadian Judicial Council. I would also like to note that I have participated in judicial education sessions focusing on sexual assault, which have been very comprehensive in both law and social context. In my experience, the judges at those sessions have for the most part been engaged and took their training very seriously.

Nevertheless, we are currently seeing a profound lack of confidence with respect to the justice system's handling of sexual assault cases. I think it's crucial for us to keep in mind that sexual assault remains the most under-reported crime in Canada, resulting from many different barriers in the justice system. I believe training for all the players in the justice system is key to facilitating access to justice in sexual assault cases.

Turning to the specific focus of the bill, I would like to comment on two of its major aspects.

First, I would like to comment on the requirement for training on sexual assault law and context before judges can be appointed. I believe this is an important means of seeking to ensure that judges understand a relatively complex and specialized area of the law, and it's an area that many judges have had no experience in before being appointed to the bench.

Judges as the gatekeepers of the justice system must be watchful for rape myths and stereotypes that may creep into their own reasoning but also those that may be used in defence lawyer strategies and even by crown prosecutors on occasion.

Currently there's a case before the Alberta courts called Barton where the crown referred to a homicide victim as a native sex worker in front of the jury without going through the required application to introduce this as sexual history evidence under the Criminal Code. It's up to the judge to try to ensure that those improper myths and stereotypes don't come out either in their own reasons or those of the defence or crown.

In other cases, judges have made problematic assumptions about complainants' supposedly reduced inhibitions while intoxicated. They have considered intimate relationships between the accused and complainant as somehow relevant to whether consent occurred on a particular occasion.

These might appear to some people to be common-sense assumptions about sexual behaviour. However, they are rooted in myths and stereotypes that judges must guard against as they rely on false logic and discriminatory rationales.

Again, as the persons in charge of sexual assault proceedings, judges must ensure the fair trial rights of both accused persons and complainants are respected and these sorts of myths and stereotypes are rejected, whatever their source.

Specialized education on law and social context will help to equip judges to properly fulfill these obligations in sexual assault proceedings and may help to avoid needless appeals by reducing errors of law.

Second, I would like to comment on the requirement of written reasons in sexual assault proceedings. This requirement will help to ensure judicial reasoning is capable of being understood and assessed by the accused, the crown, the complainant, and members of the public.

We must recognize sexual assault cases like other criminal cases are not simply matters between private parties. They involve systemic issues that require the ability of the public to access and understand judicial decisions. It's been noted that most members of the public don't have access to trial transcripts supporting the requirement that judicial decisions should be written and published in accessible formats.

I believe the bill could go further and require written reasons not just when a verdict is reached but also for interim applications in sexual assault proceedings such as rulings on sexual history evidence. However, it has also been noted that we must recognize that the requirement of written reasons will have an impact on judicial resources at a time when these resources are already strained. If the bill is passed, consideration should be given to ensuring adequate judicial resources to enable the written reasons requirement to be implemented.

Thank you, and I look forward to the questions of the committee.