Status of Women Committee on May 2nd, 2017

[Norman Sabourin]

The key concern that we have at the CJC is that it appears to be an attempt to do indirectly what you cannot do directly, which is to say, naming judges who were attending which course at what time in order to say, you made the following decision and we will attempt to characterize the validity or how defensible your decisions are based on what training you did or did not take.

I think that is a very difficult leap of logic to make. If you're going to try to identify which court had how many judges attend such a course over a period of time, I think the obvious objective is to find out, over time, which judge did not attend which course and when, in order to characterize or otherwise make a judgment about their decisions. CJC is of the view that this would be very problematic, not only from an independence perspective, but also from the perspective of trying to draw conclusions about the decisions of judges based on what training they may or may not have received.

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

Thank you.

I want to add to that as well.

We've also heard from witnesses that you're considering the crime funnel. The incident takes place and the victim maybe reports it or doesn't. Let's say in the case of a woman, the woman then reports it to the police. They may find it to be unfounded. Maybe it goes a step further. The accused has defence counsel. She has the crown attorney. Based on their best practices or lack of practice, as it goes through that crime funnel, then we hit the provincial court system within that system. We know that in the case of Justice Camp—which often hear as an example—that not only was he a provincial court judge, but that he was also appointed by the previous government to the Federal Court, with the government knowing about his comments. When we get to that stage, are we really doing the service we think that we're doing? How do we get this to be more comprehensive? One of the concerns we have heard about the naming and shaming is the decision the judge puts forward is often based on the best evidence they've received in that court. That follows through on the naming and shaming aspect as well.

Mr. Sabourin, I'm wondering about the curriculum itself. Is the curriculum reviewed? Could you share broadly the learning outcomes from that curriculum?

[Adèle Kent]

Is the curriculum reviewed? The NJI curriculum is reviewed periodically. In fact, my director of education programs and I are in the process of doing a review right now. The second part of your question was—

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

The learning outcomes.

[Adèle Kent]

The learning outcomes is not a phrase I know.

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

As a result of taking this training or this education, this is the expected learning to result.

[Adèle Kent]

All of our courses are developed. The first thing we do is to ask what the objectives of the course are. The judges will know the objectives of this course. In the case of comings and goings, the objectives of this course will be to understand the difficulties faced by a woman leaving an abusive relationship. Then the course hopefully addresses the objectives. Then we have the judges evaluate it to see whether we've met our objectives.

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

Thank you.

I do want to commend you for the videos. As someone who has worked in post-secondary education and understands pedagogical outcomes, I believe that the introduction of videos is important because there's a variety of training resources out there and a variety of methods to access those resources. If it makes it easier, it may be more likely to be viewed. That would tie then into the learning outcomes.

My colleague, Ms. Damoff, asked about intersectionality in law, and you had suggested, Justice Kent, that in making a list we may miss certain groups. If we were making a change to the bill and we were introducing intersectionality, would that be encompassing enough?

[The Chair, Conservative, Marilyn Gladu]

I'm sorry, but that's your time.

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

Oh. I'll have to be a bit quicker.

[The Chair, Conservative, Marilyn Gladu]

We'll have to go to Ms. Harder for five minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I'll pick up where I left off with regard to undertaking training. Again, I'm faced with a problem here. If you don't actually keep track of judges, how long they attend, and which courses they're taking, then I fail to understand how you can then make it mandatory. You don't actually know whether they're attending, for how long, which courses, or which parts of the training they took. Without proper record-keeping, how is it you can make sure that it's mandatory?

[Norman Sabourin]

First of all, the mandatory education for newly appointed judges was just adopted as a policy by the CJC last month, so it's a recent requirement. The CJC has just decided to publish, as you know, the description, overview, duration, date of seminar, and the number of judges who attended each seminar. By developing this information, which, frankly, we didn't have the resources and ability to do in the past, we will have a better database of such information. I think what you're getting at—

[Rachael Thomas, Conservative, Lethbridge, AB]

As part of this, then, you will need to be keeping track of attendance. Will that be part of this new mandatory policy?

[Norman Sabourin]

We will know attendance for sure, because we will start monitoring it in order to publish what we've undertaken to publish as per our position paper tabled before this committee.

[Rachael Thomas, Conservative, Lethbridge, AB]

So you'll be keeping track of attendance, not just registration?

[Norman Sabourin]

For new judges.

By the way, in case there's any doubt, other than a family emergency, really, I'm not aware of a single judge who did not attend every single day of the new judges training school. So I wouldn't make any inferences about people not attending and our having to look for truants.

If I might—

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you. I feel that you're enforcing my point yet again, that the problem is not whether or not they're attending but the content of the courses they're receiving.

My next question is with regard to judicial independence. One of the things that was brought up is that this could perhaps infringe on that. Now, you've gone ahead and made the training mandatory. You've decided that this doesn't infringe on their judicial independence, yet somehow this bill, this legislation on the table, might. It appears there's some cherry-picking going on in terms of what infringes on judicial independence and what doesn't.

Can you clarify that for me, please?

[Norman Sabourin]

I'm not overly familiar with the phrase “cherry-picking”, because English is my second language.

[Rachael Thomas, Conservative, Lethbridge, AB]

It's when you pick and choose what's convenient.

[Norman Sabourin]

Okay.

I don't think that's a fair thing to say. The reason it's okay for the CJC to adopt a mandatory education policy is that it's judges telling judges that they shall attend the school. The reason it's okay for the CJC to tell judges that they will engage in 10 to 15 days a year of education, which will include social context education, is that it's judges telling judges that this is what they shall do.

The problem with the bill is that it would make Parliament tell judges what courses they should or should not take. The CJC is of the view that this is a very slippery slope, as is outlined in our submission to the committee.

[Rachael Thomas, Conservative, Lethbridge, AB]

Go ahead.

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

Okay.

Thank you very much. It's interesting to hear that, because we're representing Canadians. Members of Parliament, 338 members, are representing Canadians. We're hearing from our own people in our own constituencies that these are some of the issues. It's very interesting for you to say that it's a slippery slope when Canadians are saying that this is an issue.

Last week in my own hometown, I was at a first nations learning place. Their number one issue was the judicial system and the fact that the judicial system does not represent them, does not take time to learn these things. All three cases that I dealt with were sexual assault cases.

I'm very discouraged, to be honest, after that statement. You're supposed to be representing the best of Canadians as well, just as we are. The fact that you would not listen to Canadians, when Canadians are saying that sexual assault needs to be looked at further, and you're referring to a “slippery slope”.... Are Canadians wrong, then, when they're bringing up cases like “keep your knees together”? Who's wrong here—Canadians, or you guys saying that you're not going to listen to what Canadians have to say? I'm really discouraged by that simple statement that you're not willing to listen to parliamentarians, who represent all of Canadians.

Can you explain that to me?

[Norman Sabourin]

Well, I'll let parliamentarians decide what Canadians think is best. The judiciary is very responsive to public attitudes. The Canadian judiciary is very proud of the fact that it enjoys a very high degree of confidence from the public. I think part of the reason is that—

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

If that were the case—