Status of Women Committee on May 2nd, 2017

[The Chair, Conservative, Marilyn Gladu]

Good morning, colleagues.

We return to our study of Bill C-337, an act to amend the Judges Act and the Criminal Code with respect to sexual assault.

We're happy to have with us again, from the National Judicial Institute, the Honourable Madam Justice Adèle Kent, the executive director.

We also have with us Marc Giroux, Deputy Commissioner at the Office of the Commissioner for Federal Judicial Affairs Canada, and Norman Sabourin, Executive Director and Senior General Counsel at the Canadian Judicial Council.

Welcome.

We'll begin with Ms. Kent for five minutes.

[Adèle Kent, Executive Director, National Judicial Institute]

Thank you very much.

I hope I don't take my full five minutes. I'm pleased to be back at the committee and to speak with you again. I have three points.

First, you asked some questions and we have provided the responses to you. I think those have been handed out.

Second, I need to acknowledge with thanks the grant that was given by the federal government directly to the National Judicial Institute. We identified to the federal government that there is a gap in training in social context education for provincially appointed judges.

I know that's not the focus of this committee, but provincially appointed judges do about 95% of the criminal work in Canada, so it's important that they are trained as well.

We will be doing some videos. They'll be on our website, available to all judges, including federally appointed judges. The objective of those is to remind provincial court judges of the requirement that they understand social context. Then they work through some examples with them, one on gender-based violence and the other we believe on indigenous law, but we're not sure.

Third, I read with interest the evidence that was given by the other people who have been here since we were here. As you know, I stayed to listen to the three professors and the crown prosecutor and that was all wonderful information, some of which I didn't know.

I think it's fair to say with respect to professors Koshan, Craig, and Mathen that we agree with them with respect to judges analyzing and thinking through their decisions. I won't spend time now on the education that we give judges to make sure that happens, but would be happy to do so in questions.

To your last group of witnesses from the community, I thought it would be helpful to tell you about a couple of programs that we've run in the past and that show community involvement.

About two weeks ago at one of our court-based sessions, with the federal judges in one of our provinces, we did the comings and goings exercise. I don't know if you know of it, but judges are asked to take on the role of a woman in an abusive relationship. The woman has two children and a pet dog. One day her husband comes home drunk and beats her. The judges are asked to take on the role and make the choices that the woman may have to take. Does she leave the home and go to a shelter? Then the judges are told the shelter shuts down for lack of funding. Where does she go? The judges say to go to a hotel. She has no money.

At the end of the exercise the judges are put in the situation where they have two choices: be homeless or go back to the abuser. What's the objective of this? This is to allow judges, when they hear bail hearings, to understand the predicament of women who are in an abusive relationship. Do I let this fellow out? Do I give conditions when I let him out? what about child support? One of the real barriers to women leaving an abusive relationship is money. So, that's one example.

The other example is a course we put on in January. It was called “Judges with Community”. The focus was mental health and people who have mental issues but are in conflict with the law.

You ask, why are you telling me this? We're talking about gender-based violence. We all know the intersectionality between gender-based violence, mental illness, poverty, sometimes race, diversity, and the special issues that can arise in our indigenous communities.

That planning committee is made up of one of our planners, judges, academics, and a member of the community who works with people with mental challenges.

I wanted to share those examples with you. We spent time during that seminar in Halifax at a Mi'kmaq centre, doing some circle learning, understanding the views of people who are mentally ill and in conflict with the law, and the people who work with them.

Thank you, Madam Chair. I'd be happy to answer any questions.

[The Chair, Conservative, Marilyn Gladu]

Thank you.

Mr. Giroux, you also have five minutes.

[Marc Giroux, Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs]

Thank you, Madam Chair. I'm pleased to be before you again today.

My comments will be quite brief. I don't mean to repeat what I've already said but wish to remind the committee of some of the points I raised the last time.

First, I'm of the view that it's entirely fair and appropriate that questions be asked regarding judges' education in the area of sexual assault law, in light of recent events, and that the objective in this regard is valid and important.

Nevertheless, the best way to achieve this objective must still be determined. On that note, I think the bill, as it currently exists, poses a problem in two areas. I have therefore raised two practical concerns.

One concern is that the bill creates the potential for a conflict of interest between the minister and the commissioner for federal judicial affairs, because it specifically names the commissioner responsible for the quality of the candidates' training. The rest of the legislation, including when it comes to the administration of the judicial appointment process, indicates that the commissioner acts as the minister's delegate. This issue is more technical and can undoubtedly be resolved more easily.

The other concern is more significant and problematic. Providing training before the candidates are appointed judges poses serious risks, given the number of requests our office receives. The candidate assessment process may slow down and—perhaps even more importantly—the training at this stage may be neither sufficient nor adequate.

One must consider how this would all work out if education in the area of sexual assault law were to be provided to candidates before they were appointed judges. How could this be done without considerably slowing down the assessment of candidates, and if this were not slowed down, would the education provided then even be satisfactory? This is where we have concerns.

In the end, what is most important is that judges be well equipped in this area of the law and that proper and sufficient training be provided. This is best done, in our view, once they are newly appointed, when there are fewer time constraints, when they can be in class, for example, and in the company of qualified experts in this area.

Thank you, Madam Chair.

[The Chair, Conservative, Marilyn Gladu]

That's fine, thank you.

Now we will start our first round of questions, with Mr. Fraser for seven minutes.

[Sean Fraser, Liberal, Central Nova, NS]

Excellent. Thank you very much to each of our witnesses for being with us today. I have a number of questions I hope to get through, so to the extent that you can keep answers short, I would greatly appreciate it if you did.

One item that we haven't really dug into yet was the categories of offences that judges should require training in. I think the sponsor of the bill has done a pretty good job highlighting the kinds of offences that deal with sexual assault. I've gone through the Criminal Code and have highlighted a few others that I think should apply, such as section 162 on voyeurism, section 163 on child pornography and, potentially, section 264 on criminal harassment and cyber-violence.

Have you had a chance to consider what's included, whether it's comprehensive, whether it covers offences that are too great, or is this beyond your review?

[Adèle Kent]

To be quite frank, I haven't looked at the bill in terms of what it should include. I can say, as you list those off, that there are a number of offences under the Criminal Code that may not be obvious and that could be gender-based and violent. It sounds like some of those are, but I haven't done a review.

[Sean Fraser, Liberal, Central Nova, NS]

Do others have feedback? Are you in the same boat?

[A voice]

Yes.

[Sean Fraser, Liberal, Central Nova, NS]

That's fine.

The issue I want to dig into the most today had to do with written reasons. Justice Kent, you specifically mentioned Professors Craig and Koshan, whom I had some familiarity with before my role as a member of Parliament. I have tremendous respect for them. I really enjoyed their testimony about the exercise of putting together written reasons. I see a lot of parallels as a member of Parliament, because I often speak from bullet points in the House of Commons; but if I were going to write something for public consumption, I would go through a slightly different and perhaps more comprehensive exercise.

One of the fears I have as well was borne out in my community in the past few weeks, in the town of Antigonish. A university professor has had a charge of sexual assault stayed as a result of the Jordan decision. I am concerned about requiring these written reasons and causing additional procedural delays for sexual assault crimes as a result.

Do you think this would lead to more sexual assault cases being stayed as a result of the Jordan decision?

[Adèle Kent]

I can't be that specific, but I can tell you that requiring what we call “reserve reasons”, like written reasons, could possibly delay the outcome for litigants. Let's face it: litigants are first interested in being successful, but secondly, in finding out the results and not being left in limbo.

Let me take what Professors Koshan and Craig said. I can't remember which one said this, but they're absolutely correct. The requirement to sit down and write it out makes you think whether or not you're coming to the right conclusion. We have an expression in judgment writing: if it doesn't write, you've got a problem with where you're going.

What we train judges to do in our oral judgment course is to hear the evidence, to hear the submissions, and to adjourn. You take the time overnight or take the time to the next week, and you set another hearing date. But that night or that weekend, whatever it is, you sit and you write it out so you have something. Then you go into court. You have your decision. It is written. You read it. It's audio recorded, and people can get a copy of it.

So there is the process of writing. What it avoids is the stack that I can always see on my desk, where I take what we call “reserve judgments” and I line them up. At some stage we know there's going to be delay.

I think the process of writing something down is good. My view is that it's probably not necessary to legislate written reasons, which might suggest this process of reserve judgment.

[Sean Fraser, Liberal, Central Nova, NS]

If I can take it one step further, another piece of the testimony that I recall hearing during the same panel was that without the reporter who happens to be sitting in the courtroom, even though there might be a transcript you can order for a fairly modest fee, it may never come to the light of day. I am sympathetic to that argument because I think, in addition to providing justice for the litigants, there is some sort of public duty, particularly in the case of a systemic lack of publication of sexual assault decisions.

Is there a way that we could ensure that the oral transcripts get into a legal database, like CANLII, Westlaw, or Quicklaw, so that they're publicly accessible?

[Adèle Kent]

It's not something that I can talk about because I think it would fall within the administration of justice and what the provinces want to do.

I will tell you my practice. If I know that the litigants lack funds, I will start my judgment with “Madam Clerk, would you please order the transcript of my reasons to be prepared and have them delivered to both sides at the cost of the provincial government?” Of course, they're responsible for that.

As for where else that goes, you'd have to ask someone dealing with the administration of justice. I just don't know.

[Sean Fraser, Liberal, Central Nova, NS]

Whether it's wise or not, do you know technically if it's possible to make these available, or is that beyond your...?

[Adèle Kent]

I honestly don't know.

[Norman Sabourin, Executive Director and Senior General Counsel, Canadian Judicial Council]

I would like to point out that the CJC expressly supports the position of the CBA on this. We think there may be concerns expressed by the judiciary down the road about a legislative requirement for written reasons and how that would be interpreted.

[Sean Fraser, Liberal, Central Nova, NS]

Okay. I've only got one minute left.

Mr. Giroux, in your last appearance you talked about the capacity to actually provide this training. I know that certain courts don't deal with crimes of sexual assault. I'm thinking of the federal tax court as an example. If we take the suggested approach of the CJC and put an undertaking on the application form, is there a way that we could limit that to the people who may actually be dealing with sexual assault cases to make sure that we're putting the training resources where they will make the biggest difference?

[Marc Giroux]

There may be a way of doing so, but one needs to remember that oftentimes candidates will apply to more than one court. They may apply to the Federal Court, but they also may apply to the superior court in their own province. So while there may be a way, there would be certainly limits to trying to limit the delays.

[Sean Fraser, Liberal, Central Nova, NS]

I think that wraps up my time.

Thank you very much to each of you.

[The Chair, Conservative, Marilyn Gladu]

Very good.

Now we go to Ms. Vecchio for seven minutes.

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

Thank you for joining us once again.

Justice Kent, I will start with you, if you don't mind.

Last time you were here, we talked about the degree of participation, and we received some information back from you today. I want to look at the participation rates when we're talking about the period of time. We've got these programs indicated here, and you show that you're talking about 932 judges attending the seminars. During that period, are they coming for one of the programs out of the 10 days, or are they fulfilling the actual 10-day program and taking in all of that information? Is their attendance based on registration and fulfilling the 10 days, or is it based on registration and participating in at least some of the programs?

[Adèle Kent]

The best I can say to that is that these statistics tend to show us that all federally appointed trial judges—except for some understandable exceptions such as family emergencies and so on and so forth—attend their two court-based programs each year. Those court-based programs tend to be two and a half to three days long, so that's six days right there.

The statistics also tend to show that the same number of judges go to one national program: on evidence, it's for five days, and on the charter, it's for four days. The one I just talked about is for two and half days. I can't say that they actually took the full 10 days, but it looks like they're taking somewhere between six and eight or nine.

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

Okay. So actually—

[Adèle Kent]

I would point out that most courts also have some in-house education as well. We don't do all the training.

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

Okay.