Oh, I'm sorry.
Evidence of meeting #58 for Status of Women in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was training.
A recording is available from Parliament.
Evidence of meeting #58 for Status of Women in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was training.
A recording is available from Parliament.
9:15 a.m.
Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs
—so he may have additional comments to make.
From our standpoint, obviously, in administering the judicial appointments process, this would not cause a problem in our administration of the process and obviously would not slow down the assessment of candidates.
With regard to the suggestion itself, it would be a simple undertaking whereby candidates indicate that they will undertake to take up that training, but I wonder if Monsieur Sabourin would have other comments.
9:15 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
Thank you.
The CJC proposal is to make candidates commit to taking this type of education. The reason we've made this proposal, which we've communicated to the Minister of Justice, is that we see it as linking the ethical obligations of judges with respect to professional development with their appointment if they are successful. So a judge can't come after the fact and say, “Well, gosh, gee, I didn't know I was supposed to take this training.” If they fail to uphold the policies of the CJC, including the 10 to 15 full days of training during the year, they will expose themselves to an ethical shortcoming. This is what we want to achieve with that proposal. The reason we like it is not only because we think it achieves the objectives proposed in the bill, but also because it would be efficient. We don't see any practical difficulty in implementing it.
9:15 a.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Moving on to something else, is there a definition for intersectionality found in law, and if there were a list of intersectional identities added to this bill, how easy or difficult would it be for judges to read a marginalized group identity into that enumerated list?
9:15 a.m.
Executive Director, National Judicial Institute
That's a big question. I'm not an expert in answering that. I can tell you that in our social context education, we identify a number of groups, disadvantaged groups. I suppose it's fair to say that lists are always dangerous because you might not include everybody. In terms of the definition of intersectionality, though, I'm afraid I can't answer that.
9:15 a.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Do either of you have any comment? No?
We had excellent testimony on crown prosecutors and the need to train them, and today we've been talking about sexual assault training for provincial judges. One of the things that has come up in testimony is that, in my understanding, most sexual assault cases actually go to provincial court, not federal court.
How much ability do we have as a federal government to actually legislate what's happening at the provincial level, or is it more discussions between our justice minister and provincial justice ministers? I don't want people to get a false sense of confidence with legislation we're bringing in that this is going to provide training for our provincial counterparts. Could you clarify that for us?
9:15 a.m.
Executive Director, National Judicial Institute
You're absolutely right that 95% of the Criminal Code offences are tried in provincial court. I am not an expert on federalism, but there are a couple of things that I've thought about. The Criminal Code is a federal statute, so to the extent that there is funding for provincial court judges, I would argue that it would be in the interest of the federal government to give that funding because it's their statute that's being interpreted. Is it some sort of accord between the federal and provincial ministers of justice? Perhaps. That's another alternative. I think you would have to look at someone who is schooled better than I am in federalism.
I just want to add one thing. I was taken very much by the crown prosecutor who was here last time. I didn't realize they didn't get the training, and as much as it's important for judges to be trained, it is important as well for the crown prosecutors, because sometimes it is helpful if your crown says, “Excuse me, My Lady, that evidence is inadmissible; it is an old rape myth.” That is of assistance. If they let it go, it slows the process because the judge has to say, “Okay, wait a minute; I think that's a myth; I have to adjourn,” and so on and so forth. I think having a broad-based look at this is also something that may be considered by others in the executive and legislative branches.
9:20 a.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Again, I think our crown prosecutors are trained provincially. They're not getting training from the federal government. So we get into those challenges and I think we heard that from her. It's not only the training itself but having the time for the crown prosecutors to actually take the training, even if it were available. Again, that all falls within the provincial government, which is outside our jurisdiction.
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
That's right, and from having listened to your work in the past, I think this committee has identified the importance of training at all levels. Ms. Ambrose has spelled out how important it is to train police officers, crown prosecutors, and the judiciary.
From the CJC's perspective, we had tried to capitalize on the outstanding work of the NJI in developing programs to see what can be shared with provincial judges. I am often in discussions with the Canadian Council of Chief Judges provincially. Using video capsules was an idea to make material available to provincially appointed judges at very limited cost—almost no cost. Likewise, when there are courses delivered in person, we look to see whether we can fit in five or six more people, what the incremental cost is, and if we could offer it to provincial judges. We're looking for ways to help, but primarily it's a provincial responsibility.
9:20 a.m.
Conservative
May 2nd, 2017 / 9:20 a.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Norman, you made a comment before about conduct discipline. I find this curious because it's clear that numbers or attendance are not necessarily being monitored very accurately. I'm confused as to how conduct discipline would be laid out, then, if you don't actually know who attended or for how long, which courses they picked up and which ones they were absent from. How do you enforce conduct discipline when this is the scenario?
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
In terms of judicial conduct generally, the executive director has authority to initiate a review about a judge. Any time information comes to my attention, I can do that. More importantly, judges have ethical obligations to signal or to flag where they see ethical shortcomings in regard to other judges. Contrary to other countries, we don't have a type of inspection service in Canada where somebody goes into judges' offices and says, “Where were you last month? What courses did you attend? Did you go to any public event and get inebriated?” We don't do that kind of inspection that goes on in other countries, but when there are ethical shortcomings they usually get flagged.
As for judicial education specifically, the policy of the CJC is very clear: 10 to 15 days a year. We know that new judges, newly appointed people, all attend. If anybody thinks there's a problem there, it's a red herring.
9:20 a.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
I'm sorry but I'm going to have to cut you off there, because you don't know that they all attend. In fact, your statistics show that 168 of them don't.
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
No, that's in regard to ongoing training for all judges.
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
Correct.
9:20 a.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Then I'm going to pick up there, because when you say that all judges are attending new-judge school, if I agree to give you that, we still have a problem and it is this: clearly making it mandatory to attend training is not actually the answer or the solution to the problem before us, because you're saying that's already happening. However, we have cases such as Judge Camp's taking place consistently across this country. If those cases are still taking place, clearly our situation is not about making it mandatory, it's about the content of the training that's being provided.
My question for you then is, do you believe that adequate training is provided with regard to sexual assault cases?
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
As I said earlier, first of all I have to disagree respectfully that there's a consistent problem among the judiciary and their training on sexual assault matters. I cannot agree with that.
9:20 a.m.
Conservative
9:20 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
There are thousands and thousands of cases decided by judges every year. We may have a difference of opinion on that, but I do agree that there are gaps. There have always been gaps. However, since the early 1990s, it is the CJC that has taken the leadership in identifying the need for social context education, building on the work of such people as Claire L'Heureux-Dubé, and famous scholars in the field of gender equality. We have required the NJI to build their programs in a way that includes social context training so that, as Justice Kent described, in specific instances, judges understand the problems of the people who come before them.
Could it be better? Of course. Are judges human beings? We tend to forget that they are. They make errors, and those errors are corrected on appeal and they are corrected by the transparency of their decisions. When we identify shortcomings in a judge's competency, steps can be taken in terms of conduct.
9:25 a.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Sure. You mentioned before that the problem with undertaking is that judges can actually be seeing criminal law cases before they've even received the training. That is my understanding. Let's say when they come in, it's spring, but that training session isn't offered until December. That's a good six months, maybe even eight months, or 10 or 11 months, before they actually receive training in the area of the cases over which they're presiding.
When you say “undertaking”, I need some clarification in terms of exactly what you mean by this phrase. Also, I need some clarification with regard to the CJC policy on training and whether judges can in fact hear cases that they are not actually adequately trained to hear.
9:25 a.m.
Executive Director and Senior General Counsel, Canadian Judicial Council
That is a very good question. In terms of the first part you mentioned, a lot of the responsibility lies not only with individual judges, but with their chief justice.
I cannot speak to what happened with Justice Camp when he was a provincial judge. I can't speak to these other provincial court cases. However, I know the chief justices of the federally appointed courts very seriously consider what cases to assign to which judges. If you have a judge who was just appointed after 23 years as a criminal guy, he's not going to do a family case. They're very careful about that. I've heard judges repeatedly ask, “Can I take the following training, because I'd like to do a jury trial and my chief says that I haven't had the experience of jury trials and I have to take this course?” That's the first part of your question.
On the second part, the undertaking, I think it's very elegant because it forces judges to recognize that the policy to take 10 to 15 days of training a year—full days, not an occasional hour here and there—is a requirement that they must discharge professionally. They cannot come and say, “Gosh, I knew I had to take training, but I thought it was every couple of years.” I think there's a real elegance in this undertaking to ensure that judges understand their obligations to pursue their professional development in a rigorous manner every year.
9:25 a.m.
Conservative
9:25 a.m.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
Thank you.
Thank you very much for coming back. It's very good that we are able to circle back and ask the questions and get more answers.
We've heard from a number of witnesses at this committee that this law will have possible unintended consequence in naming and shaming justices. I've heard that this risk is most prevalent in the section of the bill dealing with the report to the minister that would be tabled in Parliament. I'm wondering what your thoughts are about improving this section and if any further unintended consequences may result from this bill.
