Thank you, Madam Chair.
I'm pleased to have been invited to speak to the honourable members of this House in my capacity as interim executive director of the Canadian Judicial Council. While I am no longer a judge or a member of the council, I do have significant knowledge of the council, as I am the former chief justice of Nova Scotia and I was a council member for over 20 years.
Madam Chair, if it's fine with you, Justice Kent and I propose the following approach. She will soon speak about the excellent educational programming available to all judges in Canada through the National Judicial Institute. I will then speak to the council's overall view of Bill and its laudable goal of strengthening public confidence in our justice system, particularly for sexual assault survivors. The goal is one that the judiciary in Canada wholeheartedly agrees with.
We do, however, want to respectfully stress two concerns for your consideration. Firstly, the principles of judicial independence and separation of powers require judicial education to always remain under the control and supervision of the judiciary and free from outside influence. Of particular concern would be influence from government, which after all, is a party to all sexual assault cases.
The second area of concern involves the fact that this legislation covers only federally appointed judges. Yet our provincial and territorial judges hear the vast majority of sexual assault cases. In our view, they require access to the same judge-led training opportunities as their federal counterparts.
If the government is intent on passing this bill, then to address our judicial independence concerns, I will propose some minor adjustments to the bill's present language to temper and moderate the bill's effect on the principles of judicial independence.
Then we would be happy to take questions.
First, I would like to say a word about the role of the Canadian Judicial Council. The council is composed of all federally appointed chief justices and associate chief justices of Canada's superior courts. It works to preserve and enhance public confidence in the judiciary. Chief justices must be, and be seen to be, leaders in the education of judges.
Furthermore, honourable members, as Justice Kent will detail, Canadian chief justices are and must be leaders in judicial education. Overseeing judicial education is a fundamental responsibility of the judicial branch of government and is a key focus of our council's mandate. I can assure each and every one of you that every council member takes very seriously their responsibility to provide oversight and guidance on the kinds of continuing education the respective judges undertake.
In short, to ensure public confidence in the administration of justice, the justice system relies on a well-educated, professional and independent judiciary.
Let me again make it clear that we entirely agree with the laudable objectives of this legislation and what it seeks to achieve. All Canadian judges must be keenly aware of the challenges faced by survivors of sexual assault. I have three daughters. My daughter is a first-year lawyer. She reminds me that the social context to education of the type targeted by this bill is as important and fundamental as our understanding of contract law, tort law, criminal law and other substantive law.
As my colleague, Justice Kent, will attest to and provide more detail on, the National Judicial Institute, Canada's primary education provider for Canadian judges, is committed to ensuring that its professional development programs and resources meet the needs of Canada's judiciary and ultimately help to strengthen the justice system.
The judiciary is keenly aware of the need to continually improve and learn to maintain the confidence of the public. Let me respectfully say, in our humble opinion, we are on top of this.
My colleague, the NJI judge, will now provide you with more details in this regard.
First of all, let me thank all of you for allowing me this occasion to attend here and give you some information about the judicial education that we offer to Canadian judges.
The National Judicial Institute, NJI, is a not-for-profit independent organization dedicated to developing and delivering high-quality professional development to all Canadian judges, federal, provincial and territorial. The NJI is bijural and recognizes the importance of incorporating indigenous legal principles into our training.
One of the NJI's fundamental principles is that judicial education must be judge-led. This is consistent with the International Organization for Judicial Training declaration on judicial training, which states that “the judiciary and judicial training institutions should be responsible for the design, content, and delivery of judicial training.”
We have available for you the NJI's 20 principles of judicial education. One of the primary and fundamental ones is the necessity that judicial education be judge-led.
It is important that everyone involved in a trial is treated with respect, as the fundamental role of a judge is to be fair and impartial. This ensures that the rights of all participants, whether they are the complainant, the accused or witnesses, are respected.
Since 1990, the Canadian Judicial Council has required that all of these essential programs include social context education to ensure that judges, particularly newly appointed judges, are aware of the challenges faced by vulnerable groups in society.
From January 2014 to January 2020, the NJI offered 42 sessions dealing with sexual assault law, the skills required in sexual assault trials and the context of witnesses in these cases. Some sessions consisted of multi-day programs, while others were part of a larger program. Some of these sessions consisted of national programs and others were offered at specific provincial superior courts.
In addition, 15 other sessions focused on related issues such as domestic violence, trafficking in persons, victims' rights and trauma-sensitive approaches.
From the date of their appointment, all judges have immediate access to NJI's Internet site, which houses a series of videocasts on issues related to sexual assault cases. This suite of videos continues to grow. It includes videocasts not only on the laws and on the skills judges need to manage their cases, but also on the reality of vulnerable witnesses in sexual assault cases.
I'm now going to talk for a few minutes about the education for federally appointed judges, then provincially appointed judges. I'll explain to you why I'm making that distinction.
For the federally appointed judges, pursuant to the professional development policy of the Canadian Judicial Council, each judge is expected to take 10 days of education. Two kinds of programs are available: national programs, which the NJI designs and delivers; and their own court-based programs, which we also assist in delivering.
For new judges, within their first year of appointment, they are mandated to take two weeks of education, one spring, one fall. During those 10 days of education, two days are dedicated to criminal law. That, of course, addresses in part sexual assault cases. In addition, they take a session on social context. One of the parts of that addresses myths and stereotypes in sexual assault cases as well.
Then in their second year to their fifth year, all federally appointed judges are expected or mandated to take a course called “Judging in Your First Five Years: Criminal Law”. This is a five-day course on, start to finish, how to manage and run a criminal trial. Because sexual assault trials are technically very challenging trials, the hypothetical examples that run throughout the week, which the judges use to practise their skills, are both sexual assault hypotheticals.
We've run this course twice now, in 2019 and in January 2020, and each time, 60 newer federally appointed judges attend it.
In the course, the judges practise their skills. These include how to address issues in cross-examination. They watch on video a cross-examination of a complainant and an accused. They sit at tables with senior criminal judges and academics and discuss when the cross-examination went out of bounds, when lawyers were asking inappropriate questions such as about a complainant's past sexual history, and so on, and how to manage those particular cases.
In addition, during the week, to ensure that judges understand the needs of vulnerable witnesses, we have sessions that address particular groups. In the offering of last January, we were very fortunate to have Commissioner Marion Buller, Counsel Christa Big Canoe and Elder Kathy Louis, all of whom worked on the missing and murdered indigenous women and girls commission. They talked to us about the particular challenges that are facing indigenous women, who face an overrepresentation of violence, both sexual violence and family violence, from the historical issues we all are so familiar with.
The session was hosted by two indigenous judges from British Columbia: Justice Len Marchand, from the B.C. Supreme Court; and Judge Alex Wolf, from the B.C. Provincial Court.
There was also a session on children, and children as witnesses, because, of course, they have particular vulnerabilities. As the course develops throughout the years, we will be offering additional segments to the judges on other vulnerable witnesses, such as those with handicaps, recently arrived immigrants to Canada and so on.
It is a mandated program that the judges must take. In addition to this program, from that point on, for the rest of their judicial career, they have available to them the curriculum from the NJI, which contains sessions and courses on sexual assault law.
The annual criminal law course treats not only sexual assault cases, but also related issues. For example, in 2019, a portion of the criminal law course was on human trafficking. Of course, human trafficking can be for many things, and one of them is for sex.
Evidence, again, is an intensive course where judges work through hypotheticals. The criminal law hypothetical is a sexual assault case: a camp counsellor and one of his charges.
We also do programs with the Canadian chapter of the International Association of Women Judges, which often treats these issues.
In addition, the courts have their own programming, twice a year. Often, issues involving sexual assault trials are part of those programs.
Many of the courts have developed what they call “101” courses for their new judges. One of the 101 courses that we assist with is on sexual assault cases.
That's a bit of a laundry list of what's available to the federally appointed judges. Let me turn to the provincial court judges now, because this is important.
We don't have exact figures, but we estimate that about 95% of sexual assault cases are heard by provincial court judges. NJI works with the Ontario Court of Justice, and there is training in sexual assault trials within its training program. However, I think it's fair to say that for provincial and territorial judges, in total, they do not have access to the same amount of education, because of a lack of resources from their governments.
Provincial and territorial judges may attend NJI programs, but it's rather restricted. For example, the intensive program that I explained to you that's mandatory for federally appointed judges, that addresses sexual assault cases in detail, is not available to provincial court judges because of the funding mechanism for designing and delivering that course and because of the demand we now have amongst our federal judges. They can attend other programs, but again, because of the funding model, their attendance is restricted.
In conclusion, I would like to make three points.
First of all, from my meeting with and working with judges across Canada every day, judges recognize the importance of education and recognize the importance of education in sexual assault cases. They particularly recognize that they need to understand the context of all the people who come into their courtroom.
Second, it's important that we, as an institute, along with the Canadian Judicial Council, recognize that provincial and territorial judges are in need of this training, as well. They conduct most of the sexual assault cases in the country.
Finally, the NJI, along with the CJC, has committed to working with the federal government, as we can, to strengthen our justice system in Canada.
Thank you very much, and I'll turn it back over to Mr. MacDonald.
Thank you, Madam Chair.
Justice Kent and Justice MacDonald, thank you very much for coming today. Your presentations have been very informative and very helpful.
In terms of my background, I practised before the courts in Ontario for 20 years. I grew up surrounded by people in the legal profession. I say that only because it gives me some insight. I believe we have the greatest justice system in the world. We live in a world now where it's easy for people—journalists, politicians, the public—to pick one-off situations and use them to attack the system. That is fundamentally wrong, in my opinion.
Justice MacDonald, I'm glad to hear you say that we're on top of this, because I do believe we are. I know that in Ontario, the education system for judges is top-notch. You get judges appointed from a civil litigation background. They need to be trained on criminal procedure and some update on criminal law, or vice versa. The training system we have is extraordinary, in my opinion. Forty years ago when judges were appointed, they came from a general background. They practised all these different areas. They didn't need the training. Now they do.
This is the latest example, but we can't do anything that fetters the discretion of the judges. That's why I'd be very interested to hear what amendments you propose. I will go through some of the language in the legislation in a moment. The preamble of the act says, “survivors of sexual assault in Canada must have faith in the criminal justice system” and “Parliament recognizes the importance of an independent judiciary”. That has to be paramount in anything that's done here.
I'll ask you, Justice MacDonald, as it wouldn't be fair to Justice Kent, if there are any specific amendments you would recommend right off the top. I'm looking at some of the sections, for example, on the reporting of judges who go to seminars.
Thank you, Madam Chair.
Thank you, Madam Justice Kent and Mr. Justice MacDonald. I'm pleased to hear from you this morning.
I understand from your testimony that you have two main concerns: on the one hand, the training of provincially appointed judges who are appointed by the provinces, and on the other hand, what we just talked about, judicial independence.
These are points I'm also very sensitive to, but I think there's a small distinction to be made. As far as I'm concerned, judges who are appointed by the provinces should not be subject to interference by the federal government. In my view, it's up to the provinces to deal with these issues.
That said, judicial independence is an issue of great interest to me. I would have asked you for clarification, but the document you just sent us clarifies it.
I'd like you to confirm something for me. As I understand it, you're asking us to trust all of our judges and our courts. As a lawyer myself, I also trust our judicial system, and I share the opinion of my colleague Mr. Maloney that we may have the best judicial system in the world today.
In the distinction you make, you invite us to place this trust in the judiciary rather than in the legislature. Is that correct? If so, what about democracy, the right of citizens to elect the legislator, to elect their representatives to Parliament, so that the public can influence the issues that concern our society? Is there not a democratic problem with the choice you are asking us to make?
Thank you, Madam Chair.
Thank you all for being here.
I am pleased to be here today to speak to you about Bill, an act to amend the Judges Act and the Criminal Code.
Bill C-5 proposes amendments ensuring all newly appointed provincial and territorial superior court judges participate in continuing education in sexual assault law and social context. Further, it would require the Canadian Judicial Council to report on the participation of all sitting superior court judges in sexual assault law education. Finally, the bill would also require judges to provide reasons in writing or on the record for decisions in sexual assault matters.
The underlying objective of Bill C-5 is to enhance public confidence and, in particular, the confidence and trust of survivors of sexual assault that the criminal justice system will treat them fairly. It is to reassure them that, when they do come forward, they will be treated with dignity and respect by judges who have the knowledge, skills and sensitivity to correctly apply what is a very complex and nuanced area of the law.
The bill serves as an example of parliamentary collaboration. We have our former colleague and previous Conservative Party leader, the Honourable Rona Ambrose, to thank for this. I want to start by recognizing her initiative on this critical issue.
Ms. Ambrose's private member's bill, Bill , started the conversation for the need for judicial training in the area of sexual assault law and the imperative for elected officials to do what they can do to support this. Bill was informed and inspired by Bill C-337.
The criminal justice system has long faced challenges in responding to sexual assault in Canada. Much progress has been made by both our government and previous governments in bringing forward reforms aimed at enhancing the equality, privacy and security rights of complainants by countering the myths and stereotypes that have persisted in our criminal justice system. These reforms have, at the same time, balanced the rights of the accused in a manner consistent with the relevant Supreme Court of Canada jurisprudence.
However, despite the robustness of our legal framework in this area, there are still extremely low rates of reports, charges and convictions in sexual assault cases. One of the main reasons for this is that victims of sexual assault tend to fear that they will not be believed, and that they will be humiliated or singled out. These fears are reinforced by some cases reported in the media, where judges or other actors in the justice system actually do so. These cases have seriously undermined the confidence of Canadians in our justice system.
Bill C-5 aims to increase public confidence and trust in the ability of our criminal justice system to hear cases in a manner that is fair, respectful, treats people with dignity, and above all, is in accordance with the law that has been carefully developed to ensure this.
Judicial independence is critical to public confidence and a core constitutional principle. Judicial independence requires judicial control over the training and education of judges. A bill that seeks to enhance public confidence in the justice system cannot achieve its goal if at the same time it undermines public confidence in judicial independence.
The bill before us includes the amendments proposed to Bill by the Standing Senate Committee on Legal and Constitutional Affairs. These amendments were designed to respond to concerns expressed by the judiciary and other stakeholders that the original bill went beyond the limits of what judicial independence permits. The proposed amendments made the necessary adjustments to the bill, while respecting its underlying objectives.
Canada is fortunate to have one of the most robustly independent, professionally competent and highly regarded judiciaries in the world. I know members have just heard about the work of the Canadian Judicial Council and the National Judicial Institute with regard to their internationally recognized work on judicial education.
This bill in no way targets or undermines the credibility and respect our superior court judiciary rightly deserves; rather, it seeks to balance the legitimate need to enhance public confidence while carefully preserving the judiciary's ability to control judicial education.
I would now like to turn to the key elements of the bill.
First, the bill would amend the Judges Act to establish a new condition of appointment as a judge of a superior court. Under the bill, to be eligible for such an appointment, candidates would be required to commit to undertake, if appointed, training on sexual assault law and the social context in which it occurs.
These changes ensure that the government will know that the candidates it appoints are committed to training. The public can be assured that all newly appointed judges will have received such training and that judicial independence is respected, as it will not impose training on judges currently in office.
Second, the bill would amend the Judges Act to require that the sexual assault training established by the CJC be developed after consultation with survivors of sexual assault, the groups that support them, or with other groups and individuals that the council considers appropriate. The requirement to consult is intended to ensure that judicial education will be balanced and informed by the experiences of individuals affected. It is left up to the council to determine who precisely it consults and to determine the content of the training, to respect the constitutional principle of judicial independence.
Bill requires the Canadian Judicial Council to provide to the minister, for tabling in Parliament, an annual report containing details on seminars offered on matters relating to sexual assault law and on the number of judges attending. This measure is intended to enhance accountability in the education of sitting judges for sexual assault law and act as an incentive to encourage the participation of current superior court judges in sexual assault law education.
The last item in the bill consists of amendments to the Criminal Code. They are intended to ensure that decisions in sexual assault cases are not influenced by myths and stereotypes about sexual assault victims and how they should behave. The Supreme Court of Canada has made it clear that these myths and stereotypes distort the court's truth-seeking function.
Canadians and victims of sexual assault have a right to know that the strong laws relating to sexual assault that have been put in place in Canada are being properly applied in court decisions. It is for this reason that Bill would require judges to provide, in writing or on the record of the proceedings, reasons for their decisions in sexual assault cases. This provision would help to prevent misapplication of the sexual assault laws and would contribute to greater transparency in judicial decisions in sexual assault cases, as recorded and written decisions can be reviewed.
It was also suggested that the bill does not address the real problem, which is the decisions made by provincially and territorially appointed judges. That is true to some extent. The fact is that over 80% of sexual assault cases are heard in provincial and territorial courts. The Parliament of Canada has no authority to legislate in relation to provincially or territorially appointed judges. As a result, it cannot directly implement change where it is most needed. Nevertheless, this does not prevent Parliament or other stakeholders from doing what they can to ensure that our justice system is fair and responsive.
The bill serves as a clear call to governments and the judiciary in the provinces and territories to take a careful look at their own legislative framework and suite of policies and programs and consider whether there are additional measures that can be taken to address the same concerns in their own relative jurisdictions. Following Ms. Ambrose's introduction of the former Bill, a number of jurisdictions followed suit and did just that. At least one province, Prince Edward Island, enacted similar legislation. I understand that Saskatchewan and others are carefully considering policy and legislative responses.
I have sent a letter to my provincial and territorial colleagues outlining the initiatives in Bill in the hopes that all will follow suit, and I've instructed the Department of Justice Canada officials to explore options for increased availability of training for provincially and territorially appointed judges. Our government has committed significant resources to support the availability of enhanced judicial training. In budget 2017, the Canadian Judicial Council was provided with $2.7 million over five years and half a million per year thereafter to ensure that more judges have access to professional development, with a greater focus on gender and culturally sensitive training.
As I already noted, an important objective of Bill C-5 is to restore the confidence of the public and survivors in the ability of the criminal justice system to hear sexual assault cases in a manner that is fair and dignified and respects the statutory framework that Parliament has set out. Bill C-5 will send a message to all Canadians, and survivors of sexual assault in particular, that Parliament is firmly committed and prepared to act to ensure a justice system that all Canadians can trust, especially the most vulnerable.
But action must happen at all levels of government. It is my hope that Bill C-5 will be a catalyst for all jurisdictions and judiciaries in Canada to consider what measures can be taken that go beyond the symbolic and will result in meaningful and sustainable changes to the manner in which people are treated by the criminal justice system.
That concludes my formal remarks. I will of course be pleased to answer any questions committee members may have.