THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, March 18, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:30 a.m. [ET] to study Bill C-3, An Act to amend the Judges Act and the Criminal Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: My name is Mobina Jaffer, and I am a senator from British Columbia. I have the pleasure of chairing today’s meeting.
This is a virtual meeting of the Standing Senate Committee on Legal and Constitutional Affairs. Before we get started, I want to mention a few suggestions to help the meeting run smoothly and ensure we have a productive discussion.
If you experience technical difficulties, especially with interpretation, please let myself or the clerk know, and we will do our best to get the problem fixed.
Members, you will have three minutes for questions.
Honourable senators, today we are continuing our study of Bill C-3, An Act to amend the Judges Act and the Criminal Code. I will now take a few moments to introduce the committee members participating in today’s meeting.
Deputy Chair, Senator Batters; Deputy Chair, Senator Campbell; Senator Boisvenu, critic of the bill; Senator Boniface; Senator Boyer; Senator Dalphond, sponsor of the bill; Senator Dupuis; Senator Frum; Senator Keating; Senator Mégie; Senator Tannas.
Other non-members participating in this study are: Senators LaBoucane-Benson and Pate. For the first panel today, senators, we have from the National Judicial Institute Honourable C. Adèle Kent, Chief Judicial Officer, from the Indigenous Bar Association, Jean Teillet, and from the Canadian Bar Association we have Paul J. Calarco, Member, Criminal Justice Section.
We appreciate that Justice Kent and Mr. Calarco have also provided us with briefs. Justice Kent, we will begin with you with your opening remarks.
The Honourable C. Adèle Kent, Chief Judicial Officer, National Judicial Institute: Thank you, chair. I appreciate the opportunity to provide information to this committee about judicial training in Canada. I watched the proceedings yesterday and know there are specific questions that members had yesterday for the Department of Justice. I will make my remarks brief in case there are other questions that I can help you with today. Let me introduce the NJI: we are an independent, not-for-profit organization that is dedicated solely to the development and delivery of judicial training in Canada.
We’re bijural, and we recognize the importance of incorporating Indigenous legal principles in our training, where appropriate.
It is a fundamental principle of our training that it must be judge-led. That is consistent with principles of the International Organization for Judicial Training’s declaration on training that says that “ . . .the judiciary and judicial training institutions should be responsible for the design, content, and delivery of judicial training.”
Our training is developed along three dimensions: law, judicial skills and social context. Beginning in the 1990s, the Canadian Judicial Council mandated that all training should integrate principles of social context, particularly for newer judges so that they are aware of the challenges faced by the most vulnerable in our society.
I want to take a few minutes to summarize our training, both our in-person training — which is not happening now and hasn’t happened since last March — and our digital resources, and then I want to talk briefly about provincial and territorial judges.
For our live training from 2014 to last March, we delivered 51 sessions, either large programs that were dedicated solely to sexual assault cases or sessions in other programs. We delivered 51 of those sessions in the last six years.
In addition, we delivered 21 sessions on issues that touched sexual assault cases like domestic violence, human trafficking, victims’ rights and trauma-informed treatment.
Since I appeared before the House of Commons Standing Committee on Justice and Human Rights last March, we have delivered six separate sessions on systemic racism and systemic discrimination. We are in the process of developing a module that will be adapted across Canada and delivered at court-based programs on systemic racism and systemic discrimination.
Now to our digital resources. When a judge is appointed, he or she has access immediately to NJI’s judicial intranet. It has a variety of resources on issues touching sexual assault cases. We were in the process of developing further resources and that has accelerated because of the inability to provide training in person during the pandemic.
Let me tell you about a couple of our important resources for sexual assault training. First, judges have access to a series of 10 webinars that address the law, how to manage sexual assault cases — because they are very complex cases — and also the reality of witnesses who are members of vulnerable communities and may be testifying or are complainants in sexual assault cases.
Secondly, judges have access to a specialized bench book on sexual assault training. It’s entitled “Sexual Assault Law Judicial Toolkit.” This bench book provides information on law and social context. Chapters on the law, procedure and some of the specific motions addressed in sexual assault cases are already available to judges. Chapters on decision-making, sentencing and social context will be available by July 1.
Additional resources that we are developing particularly for newer judges in criminal law, and, of course, sexual assault trials will be available as part of those resources.
NJI has also developed electronic digital resources on issues related to sexual assault cases. Before Christmas we issued a digital e-letter, “Family Law,” that was dedicated entirely to the psychology and law of domestic and intimate partner violence. In the notes that we provided you, there are many more details about the training. I’m happy to answer any question about that.
Before I complete my remarks, let me talk a little bit about provincial and territorial judges. The reality is that provincial and territorial judges conduct most of the sexual assault cases in Canada. NJI is only involved in a portion of their training. I can’t, for example, give you any information about what the expectations of chief judges are about the training that their judges should take.
However, I think it’s fair to say that provincial and territorial judges do not have access to the same amount of education as federally appointed judges because of a lack of resources. I will give you one example. Provincial and territorial judges may attend NJI national programs unless they’re restricted to federally appointed judges. We have a course entitled “Judging in Your First Five Years: Criminal” that is an intensive five-day program on sexual assault law. At this point in time, it is restricted to federally appointed judges given the number of those judges who want to take that course.
The Criminal Code, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act are all federal legislation. Provincial and territorial judges apply that law daily.
I would suggest that Parliament also has an interest in all judges getting it right. Training for provincial and territorial judges on sexual assault law, in my view, merits the attention of the federal government.
In conclusion, thank you for the opportunity to speak to you. We recognize the importance of Bill C-3 in strengthening the confidence of survivors of sexual assault in the justice system, and we recognize the role of the Canadian Judicial Council and the NJI in providing education to judges.
It is important to remember the crucial role of provincial and territorial judges. The NJI is committed to working with the federal government to strengthen the justice system for all Canadians. Thank you, Madam Chair.
The Chair: Thank you very much, Justice Kent. We will now hear from Ms. Teillet from Indigenous Bar Association.
Jean Teillet, Indigenous Bar Association: Thank you, Madam Chair. I am presenting on behalf of the Indigenous Bar Association.
I’m an Indigenous lawyer, and I would like to speak to two components of Bill C-3, the first is the need for written reasons and the second is for continuing education.
With respect to written reasons, the goal of this particular amendment is, as stated in the preamble, to enhance transparency and accountability of the judiciary.
The Indigenous Bar Association fully supports this goal, and we see it as perhaps the most important part of the bill. The gender-based violence against Indigenous women, particularly, is one of the dark corners of Canadian society, and this violence has been going on for well over 100 years, since the beginning of Canada. The Canadian judiciary has, unfortunately, been one of the pillars that has supported this violence and kept the corner dark. The judiciary does this in many ways, over time, through the continued use of myths and stereotypes, the treatment of victims as offenders and the failure to expose the violence by making these issues readily accessible to the public.
I could name countless cases where Indigenous women who are the victims of violence are treated as offenders by judges and where written reasons would have been extremely helpful. For now, I’ll look at three recent cases, the Barton case, more commonly known as the Cindy Gladue case; Blanchard, more commonly known as the Angela Cardinal case; and Wagar, which is more commonly known as Justice Camp’s famous “knees together” case. To give you an accurate sense of how long this has been going on, there is a case [Technical difficulties] from 1855 — and I could list hundreds from 1855 — of two Métis sisters, the Thomas sisters, who were violently raped and were not believed in court because “they were ordinary-looking half-breeds.” The intersection between racism, anti-Indigeneity and women has been playing out for a very long time.
The goal of this bill — which the Senate and the House are trying to go after and for that we applaud you — to have transparency and accountability is the same as in the previous version of the bill. But in the current bill, it has been seriously downgraded. For the Indigenous Bar Association, this is an unwelcome change to the previous version of the bill that required written reasons for all sexual assault cases.
Now in 2008, [Technical difficulties] released its reasons in R.E.M. and H.S.B., two sexual assault cases of young girls. The court emphasized the need for written reasons and the purpose for those reasons, one of which was to provide public accountability. The Indigenous Bar Association agrees fully with the Supreme Court of Canada with respect to public accountability. We agree that written reasons are necessary for public accountability. They open up sexual assault trials to the sunlight of public scrutiny. The lack of written reasons affects the ability of lawyers and judges to easily access case law. It means the evidence of judicial treatment in sexual assault cases is hidden from public view. Written reasons for all sexual assault cases would enhance judicial transparency and accountability, and generate public confidence in the criminal justice system, all of which are much needed.
We also point out that because this is an amendment to the Criminal Code, it relates to what the previous speaker was talking about, which is that it would affect judges who are provincial court judges as well as —
This part of the bill that amends the Criminal Code relates directly to the point the previous speaker made, which is that most sexual assault cases are handled by provincial and territorial court judges, so this part of the bill will pertain to all judges who are dealing with sexual assault cases.
Our understanding is that the bill was downgraded — at least we consider it a downgrade. It was amended to remove the requirement for written reasons for all sexual assault cases largely because of submissions that came before the House on cost.
There were also some submissions regarding delay, but essentially, delay and cost is the same thing. There is a cost to having written reasons, and the cost is either it takes longer to get your result or the cost is the [Technical Difficulties] financial cost. The Indigenous Bar Association urges that requirement for written reasons [Technical Difficulties] to seriously consider and reexamine exactly what that cost is and who bears it.
The Chair: Thank you very much.
Our next speaker is Mr. Calarco.
Paul J. Calarco, Member, Criminal Justice Section, Canadian Bar Association: Thank you, senators, for the invitation to present the views of the Canadian Bar Association’s Criminal Justice Section and Judicial Issues Subcommittee on Bill C-3 to you this morning.
CBA is a national association of about 36,000 lawyers, law students, notaries and academics. The section represents a balance of Crown and defence counsel from across Canada. I am a defence lawyer practising in Toronto. The CBA subcommittee deals with policy matters relating to the appointment, remuneration and independence of judges, as well as disciplinary measures affecting them. An important aspect of the CBA’s mandate is that it seeks improvements in the law and the administration of justice. It is from that perspective that we appear before you today.
The bill is quite similar to private member’s Bill C-337, and replicates almost exactly Bill C-5. While changes have been made from Bill C-337, it continues to suffer from many of the problems we identified in a 2017 submission.
In my opening remarks, I wish to deal with four main problems. First, we believe the bill is unnecessary. The Canadian Judicial Council and the National Judicial Institute already provide training and education for federally appointed judges. Justice Kent gave you information regarding both the quantity and the quality of programs provided, and I will not repeat her comments but I adopt them as my own. This suggests that the need for judicial education of federally appointed judges is already being met quite effectively.
Second, we believe that Bill C-3 would intrude on the independence of the judiciary. As Chief Justice Wagner of the Supreme Court of Canada stated in February 2020:
The judiciary, as a collective, has to be free to decide what training and education judges receive to do their jobs well.
We suggest that Parliament should not attempt to make another co-equal branch of government, subject to a particular type of education that Parliament determines to be necessary. Any interference with the independence of the judiciary must be guarded against in Canada’s democracy.
Third, Bill C-3 does not touch upon the education of provincially or territorially appointed judges who preside in the courts across Canada where the majority of sexual assault cases are actually heard. Those jurisdictions have often developed their own educational programs, and we believe it is best to allow provincial and territorial judges to work directly with their federal colleagues to develop any educational programs needed.
Finally, the bill’s practical operations are quite unclear. Would an appointment be suspended or held in abeyance until the required training was completed? How would the training be administered and who would pay for it? What would happen if a person were appointed and then was unable to complete the training for any reason? Would that result in disciplinary or other action against the judge? Also, what is the rationale for requiring judges who would never preside over a sexual assault matter, for example, a Tax Court judge, to take sexual assault training?
We recognize that judicial education and sensitivity training are laudable goals but suggest that this bill is not an appropriate or effective mechanism for accomplishing those goals.
Thank you for your attention. I would be very pleased to respond to any questions that the honourable members of this committee may have.
The Chair: Thank you very much.
Justice Kent, I have been a lawyer for many years and I used to do training for judges with NJI on racism and our Western Judicial, which has disappeared now, so I know that you have very good courses.
One of the things I wanted you to clarify is that you said, and maybe I didn’t hear you correctly, that you have working programs dealing with systemic racism and systemic discrimination. Can you clarify what “working programs” mean?
Ms. Kent: This goes back many years. About 10 years ago we developed a series of social context courses and they would be dedicated each year to a different issue of social context. One of the years that was dedicated to racism and another to religion and another to gender, and so on. There have been those courses in the past. However, I believe it’s fair to say — and I’m not an expert; we have retained some experts to assist us — that thinking that has evolved and has become more sophisticated with respect to issues of systemic racism and systemic discrimination.
We have retained experts to help our in-house lawyers understand what this means so they then can help judges and planning committees across Canada deliver modules in systemic racism that are relevant to their province, to their area. Of course, we know the issues with respect to racism can be very different in British Columbia, Nova Scotia, Alberta and so on. We’re in the process of developing those modules.
I expect, as the modules are developed, we would engage with community members in the specific areas because, as I say, they are best situated to understand the issues of racism and systemic discrimination in their provinces.
The Chair: My question to you has nothing to do with that, but when I first became a lawyer, judges were mainly from large law firms. Now we have judges from all walks of life and I’m really concerned. Why do we have to teach judges social context? I read here different things that have been set up saying that social context training is an important facet of judicial training, providing an appreciation of human conditions of society within which the judges operate. Why do judges need social context training? They are part of our society. I’m really troubled by that.
Ms. Kent: Well, you’re absolutely right that in the past, the judiciary tended to come from a regionally homogeneous group of people and that is changing. I go to new judges school twice a year and meet with the new judges and over the past five years I look out over the room and our new judges school is starting to look like Canada in terms of diversity.
I would suggest the reason we need social context training is that even the more diverse bench we have today doesn’t allow judges to have the experience of every vulnerable group that will be coming into the courtroom. While it may be more tailored because we have a more diverse bench now, I would suggest that we continue to meet to open up the minds of the judges to the experience of a diverse society.
The Chair: Thank you.
Senator Dalphond: Thank you, Justice Kent, for being back before us again. It’s a pleasure to have you back.
I have three questions. I will put the three questions and give you time to answer them.
The first question is about the newly appointed judges. I know you must have statistics about that but some people fear they won’t attend so, in practice, newly appointed judges, especially those appointed to superior courts, do they all attend the two-week training for new judges?
The second question is about social context. I was appointed a justice in 1995 and the first judgment of the Supreme Court using the expression “social context” was rendered in 1992 and that was really a hot topic and was a hot topic for the 20 years I was there. I therefore want to congratulate the National Judicial Institute for making sure that judges are aware of this and always updated about all aspects of that.
The second question related to social context is about domestic violence. We have new amendments to the Divorce Act and we have to make a key change to the Divorce Act related to the obligation for judges, lawyers and social workers to look at violence and to consider it in the decision-making process. I would like to hear from you about the teaching or the training on that.
The third question is about access to training given to judges. Do we have access to information about how judges have been trained or material that was used for training judges in the past?
Ms. Kent: Thank you, Senator Dalphond.
Under the CJC policies for federally appointed judges, judges must attend new judges school. That’s two weeks in their first year. They must also attend the Judging in Your First Five Years criminal course, which is the intensive sexual assault case training.
Do they attend? It is up to the chief justices to ensure they attend. As far as I can tell, except for illness or perhaps being tied up in a long jury trial or something like that, all of the judges attend, and if they can’t make it in their first year on the bench they will make it up in the next year. And the same goes for the Judging in Your First Five Years course. As far as I can tell, chief justices are ensuring that judges attend.
With respect to training and domestic violence, this is one of the areas of training that I worry about a lot to ensure that we are doing everything we can because it is a serious issue in Canada. As I said, because of the pandemic we haven’t done in-person training but maybe what we have done in the past year will give an example. We issued a special e-letter. It not only talked about the cases of domestic violence and the decisions but also the psychology — so the myths and stereotypes — because we know there are myths and stereotypes in domestic violence cases.
What are the barriers of a woman and children leaving? Yesterday, somebody asked if the judges had been told about the importance of pets to families. Yes, that can be a barrier to a mother and children leaving, and it is in our training.
We have also done three or four seminars that touch on domestic violence, either psychology, the law or the management of those cases. They are also difficult cases to manage.
With respect to your third question about whether materials are available publicly, the Canadian Judicial Council has been transparent in providing summaries of all the courses that they approve, and those would be all NJI courses and some others with other institutions. They provide descriptions. We have to balance that transparency with the need to give judges a safe space to learn, discuss, make mistakes, practise their skills and so on. I would refer you to the CJC website for their descriptions.
Senator Boisvenu: Welcome to the witnesses. My question is for Justice Kent.
Justice, you said that, between 2014 and 2021, you had delivered 51 training sessions to sitting judges and that 21 of those sessions dealt with family violence, victims' rights and human trafficking. How many sessions covered family violence specifically?
Ms. Kent: I’m afraid, senator, I can’t give you a specific number of sessions on domestic violence. I only have that global number. I would be happy to provide that information later, but I can’t give you a specific number right now.
Senator Boisvenu: Great.
Family violence is an issue I am especially concerned about given the consequences it can have; in many cases, it ends in murder.
Since family violence cases are more common in Canada’s justice system than sexual assault cases — not that one is any less important than the other — do you think the bill should be amended, at paragraph 2(1)(b), because it refers only to racism and discrimination in relation to social context? Should the paragraph also refer to family violence, not just racism and discrimination?
Ms. Kent: Thank you, senator. It is not appropriate for me as a member of the judiciary to give you advice or my opinions on what the legislation would be. I will say to you that it is very important that all judges in Canada have access to excellent and comprehensive training on domestic violence.
Senator Boisvenu: I understand your answer, which sounds almost like something a politician would say.
What I am asking you is this. Cases that involve family violence and sexual assault make up nearly two thirds of the cases that go before the courts. In light of the very high number of family violence cases and the fact that the bill does not refer specifically to family violence, should the term family violence be added to the bill? After all, it identifies only racism and discrimination as social context issues.
Ms. Kent: Thank you, senator. I do not mean to be disrespectful or rude, but I think it would be inappropriate for a judge like me to give advice on what the legislation would contain.
Senator Boisvenu: I wasn’t looking for advice. I simply wanted to know whether you considered family violence on a par with racism and discrimination as far as societal issues were concerned. That is all I wanted to know. When family violence is lost in a welter of issues, it does not receive the serious attention it deserves. That was the only point I was trying to make, Justice Kent.
Ms. Kent: I agree with you. Domestic violence is an exceedingly important issue that judges should receive training on.
Senator Campbell: Madam Justice, what will this bill add to the training that is already going on across Canada?
Ms. Kent: In one respect, I would suggest that the training will continue to evolve the way it has, and in one way, I might say, it would make no difference. But I have to say that since 2017, when Ms. Ambrose introduced Bill C-337, the dialogue between the judiciary, the legislature and the dialogue that we have had with representatives of victims’ groups and so on has been valuable.
Although I appreciate Mr. Calarco’s comments with respect to the need for the judiciary to remain independent, I also value the kind of dialogue that we have had in the last four years.
Senator Campbell: Who is responsible for training provincial and territorial judges?
Ms. Kent: The NJI’s mandate is to train provincial and territorial judges, and we do, but it is an issue of resources. Funding for federally appointed judges comes under the federal Judges Act. The funding that we receive for provincial and territorial judges is simply not at the same level.
Senator Campbell: Would it be fair to say that it’s not uniform or consistent from each province to territory?
Ms. Kent: That’s certainly correct. I should mention that we do work on a separate contract with the Ontario Court of Justice, and they do have a comprehensive education program. I know there are a couple of other provinces at the same level, but, you’re correct, it is not consistent across Canada.
Senator Campbell: Thank you very much.
Senator Batters: I appreciate all of you being here today. My first question is to Mr. Calarco from the Canadian Bar Association.
Former Conservative leader and former MP Rona Ambrose’s extensive work on this file has shown us that one of the main reasons victims of sexual abuse do not come forward is because of their lack of confidence in the justice system. Don’t you believe it’s incumbent on Parliament to try to improve confidence in the system for sexual assault victims, especially given that the National Judicial Institute is satisfied that this legislation does not infringe upon their independence?
Mr. Calarco: Thank you very much, senator. Every victim of crime, every person in Canada, has to have confidence in our justice system. The issue is how that is accomplished. At the Canadian Bar Association, we don’t see that this bill is going to create confidence in the justice system.
The lack of confidence in the justice system comes from uninformed attitudes. People will speak about what the justice system is and what it means. In my everyday practice, speaking to other people who may be highly educated, they don’t know what goes on in criminal courts.
The best way to deal with this is to have programs that actually say what goes on in the criminal justice system. That may be through better funding of victim witness programs; it may be through reaching out, especially to communities of new Canadians who may come from backgrounds where the justice system is extremely different. It’s a practical problem. This bill does not address that overall problem, in my view.
Senator Batters: Thank you.
My second question is to the Indigenous Bar Association witness. Thank you for the important points you made this morning in your opening statement and for letting us know how critical this sexual assault law training is for Indigenous peoples.
What do you think about ensuring that there is also adequate training for judges on domestic violence? Do you think that topic is adequately dealt with under the category of social context?
Ms. Teillet: Thank you for the question. I do agree that domestic violence, or family violence, is extremely important. I think the Indigenous Bar Association would agree that it should and could be added to this bill as an important issue.
I speak as someone who is actually one of your social contexts. I’m the one you’re talking about. You have entire seminars on Indigenous people. We’re social context. Social context is a bit of an inappropriate term, as far as I’m concerned.
Adding domestic violence to the bill is important, but I definitely want to return to the cost issue of the written reasons. For domestic violence, it is extremely important that written reasons be given, because otherwise we’re shifting the costs on to the women who are the victims of this violence.
Senator Batters: Thank you. I appreciate that.
Senator Dupuis: Thank you to all three witnesses for being here.
My questions pertain to Justice Kent’s opening statement. Justice Kent, on page 5 of your brief, at paragraph 15, you talk about a bench book relating to the law and social context of sexual assault law.
I have a very specific question about that. The organization She Matters released a report this month — so very recently — detailing the findings of a Canada-wide study. The report is entitled Silenced: Canada’s Sexual Assault Evidence Kit Accessibility Crisis.
The report findings tie in with the law, not just the social context — and I want to follow up on what the previous witness, Ms. Teillet, was saying. According to the report, 41% of Canadian hospitals do not have those vital evidence kits. Consider the impact on a criminal trial. A victim is asked what she did after being assaulted and whether she went to the hospital. However, the hospital told her it didn’t have the necessary kit, but she could drive six hours away to get one. In that case, the statement would not be contemporaneous with the assault, which can be problematic.
Are those considerations addressed in your training programs? That’s my first question.
My second question has to do with something you said that I found a bit troubling. You said that education and training were especially important for newly appointed judges. It seems to me that the myths and biases underlying the complaints made to the Canadian Judicial Council cannot be laid solely at the door of newly appointed judges — quite the opposite. Can you comment on that?
My third question is about the materials on systemic racism and discrimination that you mentioned. Could you provide us with those?
I agree that the independence of the judiciary is fundamental, but transparency and accountability also play an important role. Yes, judges should be able to make decisions about their training and have control over it, but judges, the judicial community and courts should also have to provide a minimum of transparency and accountability when it comes to how they interpret and enforce the law.
Would you be able to submit those materials to the committee?
Ms. Kent: With respect to your first question on what is contained in our sexual assault law judicial tool kit, I can’t speak specifically to some of the issues you have raised, such as access to evidentiary materials like the kits that are used when victims come to hospitals. I can’t speak specifically as to whether that is contained therein. However, we do offer education to judges with respect to their role in assessing scientific evidence and in accessing that. In our world of judging cases, the evidence that is gathered with respect to these trials can sometimes be scientific evidence, as you indicated.
In terms of education, I have spoken mostly about new judge training, but I can advise you of the courses we offer, which reach judges in all stages of their career. The federally appointed trial judges have two, sometimes three, education sessions each year. My understanding is that the chief justices expect all their judges to attend those courses. Of the courses that I enumerated, many of them were offered through these court-based programs and would be available to judges throughout their career.
On your third question, which I think you asked whether or not our bench book on sexual assault cases is available. At this time, it is a document that is available only to judges.
Senator Keating: I have a comment and then a question for Mr. Calarco, on behalf of the Canadian Bar Association.
In response to Senator Batters, you said that the public often has mistrust of the system based on uninformed attitudes. Although I certainly agree with that for a large majority of cases, you have to recognize that there have been some extremely serious statements and situations in provincial courts with regard to sexual assault that are entirely justified in terms of mistrust by the public. Building on Senator Dupuis’ comments about accountability, I certainly believe in the independence of the judiciary; that’s not an issue. Having said that, I also believe in accountability.
You go on in your presentation to say that these judges shouldn’t have to follow this training if they are Tax Court judges; and if they don’t follow it, who is responsible? Aren’t those questions irrelevant to the extent that the chief judge still manages the delivery of courses? If the courses are already providing this training, then why is it an issue? Why do you take such opposition to a requirement for the judiciary to follow this training?
Mr. Calarco: There are several points here. First of all, I agree entirely that a number of comments have been made in certain cases that are absolutely shocking. Referring to the situation of then Judge Camp, that is one example. That is an atrocious comment and is exactly the sort of situation where judges need education.
This also shows the need to have properly qualified people appointed to the bench. It was admitted at the proceedings before the Judicial Council that then Judge Camp had no training in this area whatsoever. So it shows the need for provincial training, as well as functional specialization on the bench.
In regard to having other judges dealing with this, we have a practical issue. Tax Court judges are never going to deal with sexual assault cases. There is no need for Tax Court judges to have this training. We have limited resources. We live in a real world where there are only so many resources to go around. Put those resources where they will do the most good.
We have issues with the bill because it can infringe on the judiciary’s independence. That cannot be acceptable in our system. Judges need training; we agree. Parliament and provincial legislatures can put forward proper resources — more resources, better training. It’s a laudable goal, and that’s what we should have.
Senator Boyer: My question is for Jean Teillet. Before the COVID-19 pandemic, Indigenous women faced alarmingly high rates of sexual assault and domestic violence. This hasn’t changed. Now more than ever, Indigenous women would benefit from judicial nominees having a comprehensive education in sexual assault law.
I want to thank you for raising the important issues of the written reasons and the costings and the effects on Indigenous women.
We have heard that Bill C-3 will require judicial applicants to undertake and participate in education in relation to sexual assault and social context. My concern is that there is nothing in Bill C-3 that addresses the same requirement for the existing judiciary. Survivors of sexual assault, especially Indigenous women, already have a lack of confidence in the judicial system, and the lack of requirements for existing judges would only deepen this lack of confidence.
Do you think that the comprehensive and mandatory education requirement should be extended to existing judges?
Ms. Teillet: Thank you for the question, Senator Boyer. I would say you are correct. According to Statistics Canada, 31% of Indigenous people report they do not have a lot of confidence or no confidence at all in the criminal justice system. These are not people who come from another country. This is 31%, and the majority of that is because they have contact with the system; they know what it’s like. The first thing I would say is that this is very important. The people who are most in contact with the system have the least amount of confidence in the system.
Mandatory training is important for two reasons. One is that people have to know what judges are taking. The other part of this bill is about reporting on that training so that judges have to report what they are taking. It does not impede judicial independence — which is an important concept — for the public to know what judges are studying and learning and what kind of education they are getting. This would increase confidence in the system.
I think it’s a double-barrelled answer. First, judges have to take the training. Secondly, existing judges have to take it, not just new judges. I think your point is right, Senator Boyer.
The third thing is reporting out. Confidence in the judicial system, in the criminal system and in our entire system only comes if the light is shone on everything. That means public accessibility, and easy accessibility, to everything that is going on so that people know. That’s what builds confidence.
Senator Boyer: Thank you for the clarification.
Senator Boniface: My question is for Justice Kent. I’m interested in how you evaluate the effectiveness of your programs. Do you look at how decisions may change or how decisions may be more thoroughly explained? I would be interested in how it’s effective.
My question Senator Boyer already asked, so it’s just that question, Madam Chair.
Ms. Kent: Right now, we evaluate our courses by asking the participants about their appreciation of what they have learned in the courses. That’s our main type of evaluation.
It is not within our mandate to monitor the decisions and whether decisions are changing, that sort of thing. As you know, the decisions of trial judges are subject to appeal. Those appeals are rare. The monitoring will happen.
We take our direction and advice from the Canadian Judicial Council, which is made up of the chief justices from across Canada. I can assure you that if there are issues arising in NJI’s meetings with the Canadian Judicial Council, we are advised of the issues and will look at incorporating these concerns in our training.
Senator Boniface: Thank you.
Senator Frum: My question is on the same topic, so I’ll continue with that line of questioning, and this can be for any of the witnesses. Is there any data that measures the effectiveness of the training?
Mr. Calarco, I heard your comment that one of the solutions is to appoint qualified judges in the first place. For those judges who aren’t qualified, who are showing poor judgment, is there reason to believe this kind of education and training can solve that problem?
Mr. Calarco: Senator, I can’t speak to the actual content of the courses, of course, because I’m not a judge, as you well know.
With regard to training and the appointment of qualified judges, it’s absolutely essential that the local administrative judges or senior regional judges, as the case may be, ensure that before a person is put on a particular type of case, they have the appropriate training, whether that’s in their days as a lawyer or in sufficient courses they have taken since their appointment to the bench.
In Ontario, for example, in the Superior Court, we have a commercial list where only judges who are very experienced with extremely complex commercial matters will be allowed to preside. We have some functional specialization, but it’s not complete.
Functional specialization, better training and the involvement of the senior regional or local administrative judges, as the case may be, can go a long way in ensuring the quality of justice that is administered.
Senator Frum: Justice Kent, this is repeating the last question, but in terms of hard data to show the impact and efficacy of this training, is there any data or is it all self-reported?
Ms. Kent: There is no hard data that I am aware of. We do see the effect of judges’ decisions in terms of what happens on appeal and the errors that are corrected there. That’s one source.
The other source is that we have an active and vigorous legal academic community who are not shy in analyzing decisions of judges. There is a recent article on systemic racism, impartiality and unconscious bias and the analysis of cases over time, which critiqued what judges are doing. That kind of valuable analysis we take into consideration. In terms of hard data, I’m not aware of any.
Senator Frum: Thank you.
Senator Mégie: Thank you to all three witnesses. I’m wondering about the issues that fall under the social context umbrella, and my question is for all three of you. Do you know whether law schools have begun in recent years to include the concept in their curriculum?
If they haven’t, do you think that would be a good place to start? It might help and make the education component easier down the road, even though not all lawyers go on to become judges, admittedly. Would it not be better to include the concept in the curriculum and teach it at law school if it’s not already being taught? What is your take on that?
Perhaps Justice Kent could answer, or is there someone else who would like to comment?
Ms. Kent: I will defer to Ms. Teillet.
Ms. Teillet: I’m going to tell you a story. When I was in law school, there was a one-week seminar on feminism and the law. A lot of it was about domestic violence and sexual assault and the police and the criminal justice system. It was an excellent week where the whole class came together to hear all of this stuff. At the back of the class, there were eight men who sat and listened for the whole week with newspapers up in front of their faces. It was a very blatant statement that “We’re not going to listen to this stuff. You can’t teach us anything.” I will not name them, but two of them are now judges. To repeat an old phrase: You can take a horse to water, but you can’t make it drink.
I have been an instructor at an NJI course. This is at the provincial court level for Ontario. It was an excellent day with psychologists, psychiatrists and people talking about drugs and addiction, everything. It was a very interesting day, but I would say my estimate would be that at least [Technical difficulties] and not really listening or listening, or listening with a quarter of an ear to what was going on. [Technical difficulties] There is an issue here about what education can do —
The Chair: I’m sorry, Ms. Teillet. We’ve lost sound. I’m going to have to cut you off. I sincerely apologize.
Ms. Teillet: If we have written reasons, then the sun can shine on this and we can deal with it.
The Chair: Senators, we have run out of time. We will have to end our first panel here.
Justice Kent, Ms. Teillet and Mr. Calarco, thank you so much for attending today. You can see there is a lot of interest. We could probably sit all morning and ask you many questions. Unfortunately, my job as chair is very difficult. Three minutes is a very short time to ask questions. Thank you all for being here. We hope to work with you in the future.
Senators, I have the pleasure of introducing the next panel, starting with Fo Niemi, Director General of the Center for Research-Action on Race Relations, and he is no stranger to this committee, so a pleasure to have you again.
From the Criminal Lawyers’ Association, Annamaria Enenajor, Criminal Defence Lawyer, and Megan Savard, Criminal Defence Lawyer, Criminal Lawyers’ Association Director. From the National Association of Friendship Centres, Christopher Sheppard, President and Jocelyn Formsma, Executive Director.
Senators, you also have on your list a representative from the Canadian Association of Black Lawyers. Unfortunately, he was not able to join us today because of an emergency and we will try to accommodate him next week.
We will start with the presentation of Mr. Niemi.
Fo Niemi, Director General, Center for Research-Action on Race Relations: Good morning, Madam Chair and honourable senators. Thank you for inviting us to this public hearing today to discuss certain aspects of the bill. I would like to take a few moments to outline what our organization stands for. It is a non-profit organization based in Montreal, in existence since 1983. One of the things we do is advocacy, accompaniment and assistance to victims of discrimination based on race and other grounds. We accompany them to the agencies of the administrative tribunals as well as the common law courts with our lawyers.
With this experience of more than three decades, we can contribute — and some discussions come to mind — to everything from diversity in the judiciary to the education of judges on the issue of, among other things, discrimination and systemic racism.
I will start right away with the important findings that we would like to bring to this committee regarding the study of Bill C-3. You know that when we talk about judicial education, especially with respect to Quebec, we have to talk about the disturbing and even dramatic lack of racial ethnic diversity among judges at all levels in Quebec, including administrative judges.
From the municipal court to the Quebec Court of Appeal, there are more than 500 judges, and according to the figures we have, only about 1% of these judges are from racialized groups. This is an alarming under-representation of judges of Indigenous origin. This raises serious challenges for us in terms of education, the notion of access to justice and the need to ensure fair justice, if only in terms of whether the racial cultural diversity and pluralism in Quebec and Canadian society [Technical difficulties] is reflected in the judiciary.
I think the issue of sensitivity also raises what is called judicial discomfort with issues of racism from time to time. When we talk about systemic racism and racial profiling, sometimes we notice a certain rather uncomfortable and sometimes hostile reaction from some members of the judiciary, to the point where we sometimes say to each other among lawyers that it would be better not to raise these racial dimensions, for example, in criminal proceedings with respect to the defence.
Given the social and political context in Quebec, where there is a lot of denial of systemic racism, it is sometimes easier to talk about systemic discrimination when it is based on gender or disability than when it is based on race. This resistance to recognizing systemic racism could also lead to perceptions related to the judiciary, which is not always impartial, fair, and accessible, especially for racialized and Indigenous people.
You will notice that I have often emphasized the notion of perception. Sometimes it’s perception and sometimes it’s well-documented facts; there are barriers to access to justice within the judiciary.
I also want to talk about the fact that many of our fellow attorneys are Black and they also talk about the fact that sometimes when your client is Black, you’re a Black attorney and you’re going before a judge, it might be a challenge and it might be better to have a White attorney represent your Black client so that you don’t run into biases, whether they’re unconscious or not.
This reluctance reflects some challenges as to how the judiciary, when not representative of society, can be perceived as truly effective, objective, impartial and accessible.
I would now like to speak about the issue of judicial education. We certainly need to invest in judicial education as to the [Technical difficulties] and ever-changing concepts of discrimination, sexism, systemic racism, and social context.
The Chair: Thank you very much, Mr. Niemi. We appreciate your presentation.
We will now go to the Criminal Lawyers’ Association.
Annamaria Enenajor, Criminal Defence Lawyer, Criminal Lawyers’ Association: Good morning, Madam Chair, and thank you for the opportunity to speak to you today on Bill C-3. I’m a criminal defence lawyer practising in Toronto and a member of the Criminal Lawyers’ Association, on behalf of whom I’m testifying today. I’m joined by my colleague and fellow criminal defence lawyer Megan Savard. We have provided comprehensive written submissions on Bill C-3 that I hope have been distributed to you.
The Criminal Lawyers’ Association is deeply concerned about the impact Bill C-3 will have on judicial independence and respectfully submits that the legislative branch of government should have no influence on the content of judicial education.
Judicial independence is a constitutional imperative, as well as a feature of our democracy, and enhances the public’s confidence in the administration of justice.
The legitimacy of our courts rests on the principle of judicial independence, a guarantee that judges will decide cases before them impartially and without improper influence — especially influence from other branches of government. Judicial independence is put at risk when another branch of government mandates specific judicial education or training irrespective of the content and of the topic.
If passed, Bill C-3 will create, for the first time, a precedent that judicial education can be influenced by Parliament through legislation. Training on sexual assault laws and social context is important, but the decision to provide such training, and the groups, persons and organizations that should be consulted to develop it, must be determined independently and by the judiciary.
Bill C-3 is not only a threat to judicial independence, it is also unnecessary. The kind of judicial training that it seeks to implement is already taking place. Federally appointed judges already independently develop and participate in educational programs relating to sexual assault law.
Since the 1990s, the Canadian Judicial Council has required social-context education in its key programs to ensure that judges are aware of the challenges faced by vulnerable groups in societies. Between January 2014 and December 2019, the National Judicial Institute delivered 41 sessions on sexual assault law, the skills involved in sexual assault trials and the context of witnesses in sexual assault cases.
Another 15 sessions focused on issues relating to domestic violence, human trafficking, victims’ rights and trauma-informed treatment. They have the apparatus and ability to do this training internally and independently of interference from the government. Moreover, in 2017, with the support of the Canadian Judicial Council, the National Judicial Institute developed a series of videocasts by judges and academics exploring the law of evidence and context of sexual assault trials. Finally, beginning in 2018, federally appointed judges in their second to fifth year on the bench are now required or expected to take a five-day program on the skills, law and social context of sexual assault cases.
Appropriate, relevant, sensitive and progressive sexual assault training is available for judges from a source that preserves the independence of the judiciary. Bill C-3 is simply unnecessary, and it is in fact dangerous. I now cede my time to my colleague Megan Savard.
Megan Savard, Criminal Defence Lawyer, CLA Director, Criminal Lawyers’ Association: Good morning. It’s an honour to speak before the committee. I’m a director of the Criminal Lawyers’ Association, and my practice is largely focused on sexual offence cases. I act for defendants and complainants, and I train judges, defence lawyers and Crown attorneys about how to approach these unique and difficult prosecutions.
I’d like to talk about some implications of the proposed mandatory judicial education component of this bill on the criminal defendant. Before I do that, I want to emphasize that it is absolutely within Parliament’s power — and it is Parliament’s job in some cases — to take steps to protect the vulnerable, including vulnerable witnesses and victims of crime. As defence lawyers, we know that victims and offenders do not fall into neat categories. Many of the victims that Parliament aims to protect, through this and other measures, eventually and unfortunately become our clients and face prosecution for these offences. They are entitled to properly educated judges but also independent ones.
I would like to highlight two ways in which mandating judicial education in the form Parliament proposes in this bill is actively harmful to this vulnerable group: criminal defendants. If you disagree with us and the bill passes, I also have some practical suggestions.
The first problem for the defendant is that mandatory judicial education through Parliament risks undermining trial fairness. The proposed amendments mandate training on social context without defining the term. Social context has no legal meaning. Not all social context information is reliable. New theories, untested hypotheses and pseudo-experts have no place in judicial education, and the best way to find out if a judge is relying on unsafe information of this type is to have it tested in court where the defendant can challenge its admissibility, relevance, reliability and the independence of its source. My first practical suggestion, if the committee is considering the bill, is to incorporate quality control measures and make them explicit as well as incorporate minimum qualifications for judicial educators providing social context education.
Second, proposed mandatory judicial education heightens the risk of wrongful convictions. I agree that myths and stereotypes about sexual assault complainants have historically infected sexual assault proceedings and sexual offence prosecutions and distorted the truth-seeking function of trials. Laws and social-context training that aim to dispel those myths are welcome but only if they promote the search for truth. Myth-infused interpretations of the law not only impact complainants, they result in wrongful convictions. In fact, there is a growing body of case law recognizing that trial judges use myths and stereotypes under the guise of common sense to make decisions that unfairly prejudice those who are accused.
The bill is deficient because it mandates consideration for consultation and education that is one-sided. It requires the counsel to consider survivor and survivor-supportive groups. It fails to identify defendants as equally necessary partners. It identifies education about complainants as a necessary pillar of judicial education but says nothing about the equally pervasive and increasingly visible myths that operate to the accused’s detriment, particularly when he is racialized, marginalized or otherwise vulnerable. Parliament’s choices about what language to include and not include in this legislation matter. Judges’ judicial counsel —
The Chair: May I please ask you to wrap up?
Ms. Savard: — take from the bill that it is important to educate about complainants only. Thank you.
The Chair: We will go to the National Association of Friendship Centres.
Christopher Sheppard, President, National Association of Friendship Centres: Good morning, senators and the Standing Senate Committee on Legal and Constitutional Affairs.
My name is Christopher Sheppard, president of the National Association of Friendship Centres.
I want to recognize that I’m coming to you today from Treaty 6 in the homeland of the Métis, and I’m joined by our National Executive Director, Jocelyn Formsma.
The NAFC represents over 100 local friendship centres and provincial and territorial associations across Canada in every province and territory except Prince Edward Island. We are urban Indigenous community hubs that provide a wide range of programs and services for every demographic of urban Indigenous people that span health care, education, vocational training, cultural safety, competency, sports and recreation, Indigenous rights and advocacy.
Collectively we are the largest and most comprehensive Indigenous urban service delivery network in Canada. On behalf of friendship centres in Canada and urban Indigenous people across Canada, I thank you for the invitation to appear before you today in relation to Bill C-3, An Act to amend the Judges Act and the Criminal Code.
I understand that Bill C-3 proposes amendments to legislation regarding the creation of mandatory continuing education for judges and mandatory rendering of reasons for sexual assault cases in Canada’s criminal court system. NAFC has reviewed and analyzed the proposed legislation in relation to urban Indigenous people in Canada and our overreaching concerns include: Eliminating racial and systemic discrimination in the justice system; lowering the rates of urban Indigenous peoples within the criminal justice system by eliminating racism and discrimination in criminal sentencing; preventing violence against urban Indigenous women, girls, 2SLGBTQ2+ and elders.
Urban Indigenous peoples have experienced systemic and racial discrimination in Canada that has been well articulated within, for example, the justice-related Calls to Action 25 to 42 in the Truth and Reconciliation Commission’s Calls to Action as well as Calls for Justice 10.1 in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The NAFC suggests utilizing the language of these justice-related calls to action through the development of continuing education for judges in Canada in relation to sexual assault and social context whenever possible.
Furthermore, the NAFC supports the improving of ongoing professional development for Canadian judges to raise awareness about racial and systemic discrimination against urban Indigenous peoples in Canada. The NAFC supports amendments that will aid in the administration of justice for Indigenous peoples, especially legislative amendments that will better enable Indigenous women who have been sexually assaulted to achieve justice within Canadian courts. The NAFC supports legislative amendments that will allow Canadian federally and provincially appointed judges to make well-balanced decisions around the prevention of wrongful accusations on the application of the Charter of Rights and Freedoms, the Criminal Code of Canada and the Canadian Constitution.
Urban Indigenous peoples experience higher rates of incarceration within Canada’s judicial system. We need to look at lowering those unfair rates. Specifically, Statistics Canada reported in 2016 that although Indigenous adults represent only 3% of the adult population in Canada, they are overrepresented in admissions to provincial and territorial correctional services, and in 2015-16 they accounted for 26% of total admissions.
Among women, 38% of those admitted to provincial and territorial sentence custody were Indigenous, while the comparable figure for men was 26%. In the federal correctional services, Indigenous women accounted for 31% of female admissions to sentenced custody, while Indigenous men accounted for 23% of admissions.
The education proposed by Bill C-3 for Canada’s judges should be designed and developed in consultation with urban Indigenous people. NAFC is happy to be a part of shaping education in Canada to lower Indigenous incarceration levels, as well as to prevent violence against Indigenous women and girls, LGBTQ2S+ and elders. We are in support of strengthening legislative mechanisms and these provisions to improve transparency and reporting around professional development education for Canada’s judges at all levels — especially, reporting that will allow the Canadian Judicial Council to promote fairness in Canada’s judicial system through education and regulation of judges under the Judges Act. We thank you again for your time and consideration today, and we look forward to your questions.
The Chair: Thank you very much, Mr. Sheppard. We’ll go to questions.
Senator Dalphond: First of all, thank you to all of the witnesses, this has been very interesting. Time is running out, so I’m going to go straight to Mr. Niemi with just one question.
Could you elaborate on the distinction between systemic racism and systemic discrimination? Both concepts are used in the bill you briefly referred to earlier.
Mr. Niemi: Thank you, senator.
I want to clarify this. Systemic discrimination is of course a form of discrimination that applies to all grounds. When we talk about systemic discrimination against women, for example, I think the Supreme Court’s decision in Action Travail des Femmes v. Canadian National Railway makes it clear how systemic discrimination in employment was exercised against women, and the same is true in the Court of Appeal’s decision in Gaz métropolitain inc. v. Commission des droits de la personne et des droits de la jeunesse.
Systemic discrimination is at its root a subtle form of institutionalized discrimination. When we talk about systemic racism, we add the dimension of race to the concept of discrimination; it is systemic racial discrimination or systemic racism.
Some court decisions mention this. For example, in Quebec, the 2013 Superior Court decision in the case of Tanisma v. City of Montréal addresses this issue of systemic employment discrimination against Black people. The words “systemic racism” are not used, but it is implied that there was some form of systemic racial discrimination or systemic discrimination based on race.
The notion of systemic discrimination is very well recognized; the Quebec Pay Equity Act, in its first section, talks about systemic pay discrimination against women, and explicitly refers to “systemic discrimination.”
Also, in the Superior Court decision in Regroupement des activistes pour l’inclusion au Québec v. Société de transport de Montréal et al., in which our advocacy organization was involved, the Superior Court recognized systemic discrimination in public transportation based on discrimination against people with disabilities. This is a concept of systemic discrimination that is, of course, universal.
Senator Dalphond: Thank you. I understand that you find it useful to have both concepts.
Mr. Niemi: It’s helpful to have that clarification because of the context.
Senator Dalphond: Thank you.
Senator Boisvenu: Welcome to our witnesses and thank you so much for your insightful testimony.
My question is for Mr. Niemi and Mr. Sheppard.
We heard earlier from Judge Kent that 21 training sessions were offered to judges between 2014 and 2020 on domestic violence, victims’ rights, and human trafficking. So we can estimate that there have been, roughly in seven years, seven training sessions for judges on domestic violence. This is one per year and is very small considering the societal issue of violence against women.
Earlier, the representative of the Indigenous Bar Association said she was in favour of including domestic violence in this bill when we talk about the social context, racism and discrimination.
What are your views on this?
Mr. Niemi: It would still be in the context of the sexual issue, as well. It is not negative to make a specific reference to domestic violence or spousal abuse because, increasingly, there is a link between sexual violence and sexual assault.
Senator Boisvenu: You are right.
Mr. Niemi: This kind of debate could reflect, among other things, the legislator’s intention to give more and more necessary importance to the notion of sexual assault, even in a domestic context. Because there are still people, especially when you look at certain groups, who do not understand that the sexual issue in a marital context is also a form of sexual assault. So it is not negative, and in fact it might help to foster, among other things, thinking about the notion of the rights of victims of sexual assault, and in this case, in a domestic context.
Senator Boisvenu: Mr. Sheppard?
Jocelyn Formsma, Executive Director, National Association of Friendship Centres: I’m going to take this one. I’m the Executive Director of the National Association of Friendship Centres or NAFC. I’m a lawyer and a member of the Indigenous Bar Association or IBA. We would like to uphold and advance the same recommendations that the IBA put forward.
The burden of decision-making, especially within the judiciary, shouldn’t be on the people that are subject to the decisions — the burden of education.
Last year, the NAFC reviewed 30 justice-related reports. Training was the number one common denominator across all of these reports, but the entities that were responsible for providing the training, or recommended providing it, have not implemented those in a coordinated or effective manner. In our opinion, we have given the entities responsible for training their opportunity to provide coordinated and effective training. They have not. The training is inconsistent across the country. There is no quality control. By being voluntary in some — for some of the training —
Senator Boisvenu: Ms. Formsma, my question is would you support this bill also addressing family violence?
Ms. Formsma: Yes.
Senator Campbell: My question is for the two witnesses from the defence bar. I believe either one of you can answer.
At one point we were talking about this training and it was stated by one of you — I’m sorry; I did not get which one — that the training was required or expected. I don’t think they are the same thing. “Required” seems to be that you have to take it; and “expected” is “we hope you take it.” Could someone clarify that for me?
Ms. Enenajor: I have in my notes that judges are expected to take a five-day program on law, skills and social context in sexual assault cases.
Senator Campbell: So if it’s not a requirement, it’s a “nice to have”?
Ms. Enenajor: I’m not sure about that. I would have to go through the Fact Sheet on Judicial Education, where I found this information, to pull out exactly what the consequences are for not taking these particular programs. I’m not entirely certain that it is only a “nice to have.” I think there are some core courses that judges are required to be trained on, and sexual assault law is within those core courses that judges have to take.
Senator Campbell: I don’t want to pontificate, but you can understand my difficulty. On the one hand, I don’t want to pass a bill that is already being fulfilled by the courts and judiciary. At the same time, we don’t seem to be able to get complete answers as to whether it’s a requirement or it’s expected.
My last question is this: From a defence lawyer’s point of view, what will this bill add to what is already taking place?
Ms. Savard: I think the short answer is nothing. If it were to be any more mandatory, it would be an even more obvious infringement on judicial education. The bill is, in fact, framed as a “nice to have” itself, and it doesn’t mandate any consequences for failing to comply with the undertaking.
What it would add for the criminal defendant is considerable delay and a fear that the judge who is presiding over his or her trial has been educated in a way that is not transparent but also not unbiased, in the sense that judicially provided judicial education programs have. This is not necessarily about whether the judge who presides is, in fact, biased; it’s about the appearance of impartiality, which is how we measure fairness in this context.
Senator Campbell: Last question: Is this bill constitutional?
Ms. Savard: I would say no, and I’ll let Ms. Enenajor add to that if she wishes.
Ms. Enenajor: I have nothing to add. I also believe it is not constitutional.
Senator Campbell: Thank you very much.
Senator Boyer: My question is for Christopher Sheppard and Jocelyn Formsma.
Indigenous women and children face alarmingly higher-than-average rates of domestic violence and sexual assault than non-Indigenous women and children in Canada. The rate of sexual assault self-reported by Indigenous women is more than triple that of non-Indigenous women.
Our justice system has failed to meet the needs of sexual assault survivors and even more so the needs of Indigenous women, who are most likely to face roadblocks such as systemic racism and discrimination when trying to access the Canadian justice system. Therefore, it’s imperative that Indigenous perspectives be taken into account at each stage of the legislative process for Bill C-3.
In your opinion, have Indigenous organizations been adequately involved in the development of Bill C-3? Have Indigenous survivors of sexual assault been adequately consulted, or consulted at all, regarding this piece of legislation?
Ms. Formsma: The short answer is no. As we mentioned, in our review last year of 30 reports that spanned about 50 years, we found that none of the recommendations had been fully implemented — only some, and piecemeal. From the Friendship Centres’ perspective, being one of the largest networks across Canada, we certainly haven’t been involved comprehensively. Again, it has been piecemeal, with no specific training.
It’s important to understand the positions of extreme privilege and trust that judges and lawyers hold. They should definitely be held to the highest standards. It’s often Indigenous people who are at the mercy of the decisions. We have lost so much trust in the justice system as it exists in the status quo, and it should not be up to us to instill trust and belief back into the system, if it was there at all.
Our only remedy through the legislatures is our ability to criticize and hold the justice system to account. We cannot take judges to court or to a human rights tribunal if we feel they have been discriminatory in their decisions. Instead, they are investigated by their peers. If that’s the mechanism that is available, there’s not much empowerment there for Indigenous people to be able to use a system that has already ruled against them.
It kind of goes to the constitutional question, but if not through the legislature, how else are we to hold the judicial arm to account for its training and for its decisions that are biased and racist in nature? I’m not saying that all decisions are this way, but we have noted the disproportionately high level of Indigenous people who have been incarcerated. We don’t think all those decisions were made from an unbiased point of view.
Senator Boyer: Do you support Bill C-3?
Ms. Formsma: We have questions and clarifications on the bill that we would like to see and we will submit them to you. We have a briefing note that we’ll submit to the committee for consideration. Overall, we do believe in the principle of providing some type of standard in training for judges and those involved in the judiciary.
The actual mechanisms and processes of what that looks like, need to be analyzed in consultation with the judiciary, but we think there should be some kind of standard because it has not been effective. We don’t know what judges are being taught or where they are getting their education when it comes to racism, bias and sexual assault.
Senator Boyer: Thank you.
Senator Mégie: Thank you for your testimony. My question is for Mr. Niemi and Mr. Sheppard. If this bill is passed, how would you see it working in practice for the complainants in your field experience? Either or both of you could answer the question. Thank you.
Mr. Niemi: I invite Mr. Sheppard to go first this time.
Mr. Sheppard: I’ll speak as being a past local director of a friendship centre and working with people directly involved in the justice system.
It is extremely problematic when you are supporting someone who is in the justice system and the people who are there to implement that system does not even understand their own requirements or past legislation. I think of things like Gladue reports already in cases where we know what should be considered or taken into account; and when it’s presented, there is confusion as to why this is, because there isn’t any consistency. Sometimes it depends on where you went to school; sometimes it depends on where you practised. Practically speaking, it would be preferable if something were standardized and properly implemented, then measured in some distinct way, shape or form that will hold people to account.
The challenge is that we have seen many instances when we did our review of past reports and commissions. If we look at the royal commission, which just celebrated over 20 years of existence, fewer than 20 of those recommendations were followed up. We have the Truth and Reconciliation Commission report that had a section just on justice and law, and we reference it in this presentation. Practically speaking, it would be nice if the previous millions of dollars of studies, reports and commissions were actually implemented, that the people and the experts who were talked to over 20 to 50 years were actually listened to. That’s also a problematic piece of coming before committee, after committee, after committee and referencing the same reports that were made 10 years ago.
The Royal Commission on Aboriginal Peoples actually budgeted what it would cost to implement and it was never done. When you speak with the Chief Justice of that commission, you hear his sadness and his devastation at the lack of implementation. He actually said to me that his biggest fear is that Canada doesn’t have any empathy left. If you can’t get empathy and implementation for residential schools or missing and murdered Indigenous women, or sexual assault victims, what is it next? Is there any empathy left to push this to implementation? Practically speaking, we just want to see it done after it has been said that it’s needed.
Senator Mégie: Thank you.
Mr. Niemi: If I may, I would like to add something.
I think that the importance of this bill cannot be disputed, because essentially the bill sends a very clear message to the judiciary, to bar schools and to law schools. There is a need to develop increasingly sophisticated and evolving knowledge for the legal profession and members of the judiciary.
All we know about discrimination and violence, because we have supported women and girls of all ages, of all backgrounds, and of all abilities, is that we have already seen unconscious bias, a lack of knowledge and sometimes a lack of understanding by members of the administration of justice that could alter the perception.
So this bill now sends a message that there is a way to ensure that judicial training becomes a national requirement.
So how do we implement that? I think it is up to the key players, such as the Canadian Judicial Council and even the provincial judicial councils, to find innovative ways to engage the most affected people and groups, including women victims of violence, directly in judicial training.
I believe that this approach promotes the rights of women and girls, to which we have dedicated ourselves, as a basic principle, but also encourages the most innovative approaches to training in skills development. We don’t see it as an issue of overlap or threat to judicial independence; we see the training of judges on issues of sexual violence, systemic discrimination and racism as a way to elevate the knowledge of judges and make the judiciary more relevant to society and especially to those most in need of justice.
Senator Mégie: Thank you very much.
Senator Keating: Thank you to the witnesses. My question is for Mr. Niemi.
You have answered most of the question I had, but perhaps I’ll word it a little differently.
You have heard the objections to legislative intervention in training on judicial independence grounds and have not had much time to talk about your views on judicial training. What would be your opinion on legislative intervention in training judges?
Now, you just said that this sends a very clear message to judges, but to date, the judiciary in its training may not have, in your opinion, met the requirements necessary to have an effect in court, for the victims. Is that correct?
Mr. Niemi: Thank you, Madam Senator.
That’s exactly what we’re talking about. In fact, we talked about it in our speech, but I didn’t have time to address it.
Judicial education is essential. The other thing that could also increase the capacity of the judiciary to respond to social or other challenges that come before the courts would be to ensure that the judiciary is representative of society, of all possible diversity and life experiences.
I believe that judges who have already experienced tragedy in their families, whether it’s related to suicide, persons with disabilities or domestic violence, understand much more quickly and develop much more knowledge. They have much richer approaches and analyses to these human tragedies.
Actually, what we are saying is yes to judicial education. As for the threat to the competence and independence of the judiciary, we are not sure, because the training of judges is done in any case; whether it is through group pressure, public pressure or a bill, the training must evolve.
We’re not saying exactly what to do, we’re just providing guidelines that reflect, among other things, the ever-changing norms of society, such as the norms of the Canadian Charter, women’s rights and the rights of children who are victims of abuse. So we are not dictating to judges what to learn and what topics they need to be educated on.
There are benchmarks, and it is the responsibility of judicial education bodies to develop tools. In fact, there are not only these organizations, but I’d also point out that there are the bar schools, and I think that this will have a snowball effect. That is how we will create lasting and even constructive systemic effects to increase public confidence in the judiciary, among other things. I think the long-term effects will be much more positive.
Senator Keating: Thank you very much.
Senator Boniface: Thank you all for being here and for your contribution to this bill. My question is for Ms. Savard. You made reference to concern over delays as a result of this bill, and I assume it has to do with trying to access the records of what judges may have taken in terms of training.
Could you elaborate on that in the context of how often is that done in the courts today given they are taking voluntary training provided by the justice institute?
Ms. Savard: The short answer is it’s not done in the courts today and that is because the education provided is provided by the same neutral bench that presides over criminal trial. There is a guarantee of impartiality and an appearance of impartiality which is what we ask of our judges that attaches to that kind of judicial training. Practically speaking, I can say, having participated, those education sessions reflect the nature of the organizers, also neutral, also balanced with representatives from both bars. So with that gloss of impartiality, there is no real reason to seek records of what kind of training a judge might have taken.
If you look at point 6, issue 5 in our written brief, I do address why that would change if the bill passes into law. It is essentially because once Parliament starts to take a role in providing training, that gloss of impartiality is lost, and particularly so when, as this bill does, the only mandated considerations from Parliament relate to one side of the room, so to speak.
To the extent I’m also here to provide practical suggestions, if this bill does move forward, my suggestion would be that Parliament consider updating the list of mandated consultants to include representatives, not just from survivor communities but also from the defence bar, and criminal defendants personally recognizing that they are not two different communities but, unfortunately, two communities that are very much drawn from the same pool, so to speak.
I hope that answers your question.
Senator Boniface: Partially. Specifically around the delays, am I correct by making that connection?
Ms. Savard: I’m sorry. I should have said that. Yes, you’re right.
Senator Dupuis: I’d like to thank the witnesses who are with us.
My first question is for the two organizations, the Center for Research-Action on Race Relations or CRARR, so for Mr. Niemi, and one of the two representatives of the National Association of Friendship Centres.
Mr. Niemi, you talked in particular about data on the absence of racialized individuals in the judiciary in Quebec, not only with respect to provincial judges, but federal judges too. Would you have any data on Crown and defence counsel and the composition of those groups? What percentage of these lawyers are from racialized groups? We know that it's the recruitment pool for judges.
Mr. Niemi: Unfortunately, no. I believe the Barreau du Québec is in the process of conducting this type of survey of its members. We don’t have any information on Crown attorneys. The way we collected information on the judiciary was to examine each level of the judiciary to look at the names and talk to the people in the field to find out who is who. There were five or six people from visible minorities in Quebec.
Senator Dupuis: Has your group ever been invited to provide or participate in judicial education?
Mr. Niemi: Yes, we have been invited a few times by the Conseil de la magistrature du Québec and also by the National Judicial Institute for training on the social context and also on systemic racism issues.
Senator Dupuis: Thank you. I would ask the same question of the Friendship Centre representatives. Have you ever been invited to participate in this training?
Ms. Enenajor: On behalf of the Criminal Lawyers’ Association, I can advise that I’ve been personally involved in training judges for the Ontario Court of Justice on considering systemic anti-Black racism and the sentencing of African-Canadian offenders.
The judges are alive and open to that. That was something that was organized and coordinated through judges, not through the legislative or administrative branches of government.
The issue relating to the representation of judges is not addressed in this bill. That is about the appointment of judges and being able to have sufficient representation and racialized and female judges on the bench. This bill is about the training of judges, so it’s an entirely different issue.
Senator Dupuis: My question was for the Friendship Centre representatives. Thank you very much, Ms. Enenajor, for your response.
Can we have a quick response from the Indigenous Friendship Centres? Has their organization ever been invited to participate in the training offered to judges?
Ms. Formsma: I will ask Chris to fill in on the local stuff.
I have been involved in the development of a comprehensive resource for lawyers and judges working with Indigenous people. That was done in partnership with the Indigenous Bar Association and The Advocates’ Society, as well as the Law Society of Ontario. That was done in response to the lack of education for judges and lawyers overall on Indigenous issues. We put together at least one resource that can be used.
I know that many friendship centres across the country provide cultural competency and other types of similar training, not just specifically for those who are in the legal system but for the community at large. I know that they have provided some of the training to people who are part of the legal system.
It’s a community-driven response and training that’s provided, and it’s something that would not be accredited, but it comes from community voices. I would say that it would be an equitable and reliable source of information for judges and lawyers and those respective communities.
Chris worked as a Human Rights Commission member in Newfoundland and might want to speak to any of the training that he has participated in.
Mr. Sheppard: When I was at my local centre for 15 years, I had never been approached to provide any recommendations or training to anyone in my province — I lived in Newfoundland and Labrador for a long time — but we did provide some support for a private member’s bill during one session of Parliament when we were requested by a survivors’ group to participate. I had also never been approached in my work as a Human Rights Commissioner in my province for several years. I have very little on-the-ground experience in providing that type of training or education.
In my past organization where I was the executive director, I received several visits from Senator Kim Pate in St. John’s around our work in justice and corrections because we had staff integrated into several institutions based on our experiences with offenders and victims. Even with our experience there, we had never been formally approached by justice structures.
Senator Dupuis: Thank you.
Senator Tannas: My question is for the witnesses from the Criminal Lawyers’ Association who, obviously, represent a fairly large pool of potential judges who would be interested in this area of law.
I’m not a lawyer, so forgive me for asking a potentially dumb question. We know that Parliament does have a role, and I take your assertion with respect to Parliament telling judges what to do after they are judges, but Parliament has a role in appointing judges. I wonder if I could learn from you what signals there are that the appointers have of potential appointees around this? Is there any kind of pre-judge certifications that will be a signal to an appointer that this judge has taken some training and shown some interest in taking training around this area?
There was a relatively new phenomenon in the corporate world where I’m from, where there was the formation of the Institute of Corporate Directors, and people who aspire to become a director of a corporate entity take a course and become certified before they ever get appointed. Is there anything like that that your association or other associations put forward to provide some signal about people’s readiness to be a judge, if, indeed, that is the appropriate place where we ought to be pushing our weight around?
Ms. Enenajor: Absolutely. The application process to become a judge is comprehensive and involves consideration of a number of factors, including the kinds of continuing professional development and education that lawyers participate in throughout their career. In participating in sessions that are offered by organizations like the friendship centre, the resource that the witness from the friendship centres referenced, that was created in conjunction with The Advocates’ Society, something that I and lawyers that I practise with are familiar with, and it is something that is available and open.
There are a number of resources available through bar associations and law societies that specifically speak to these issues and will provide training for lawyers to be more sensitive, aware and alive to the very difficult issues that can come up in sexual assault cases and to practise in a trauma-informed way. These are the kinds of skills or participation that you can actually put on your application to be a judge. You can list the sessions and training programs that you participated in, as well as opportunities to enrich yourself through pro bono work in these areas, to advocate on behalf of people who are vulnerable and demonstrate that you have turned your mind to this important issue, are alive to the way in which these things need to be dealt with and are aware of the systemic issues that occur in our judicial system. That is relevant, encouraged and looked for in training, not just the training of judges but in the appointment of judges. The application absolutely creates room for a person who is on the bar and has aspirations to the bench to show their bona fides, and their understanding and comprehension of these very difficult areas of law.
Ms. Savard: To add to that, because of the concern we raised about judicial independence, it’s important to note that judges don’t stop wanting to be judges and don’t stop thinking about their job applications after they hit the bench. The most common pool from which the Supreme Court of Canada is drawn is the provincial courts of appeal. The most common pool from which the provincial courts of appeal is drawn is the lower court benches. Number one, that fact should provide the Senate with some comfort that the non-mandatory but expected judicial education in these areas is, in fact, being taken up by judges who may still be applying for jobs in the future. Number two, it should also highlight the concern the CLA and other parties have about judicial independence. Judges who are sitting on the bench and who know that the appointers, as you put it, only care about one side of the room, which is the perception this bill creates, will be influenced to decide their cases a particular way, subconsciously or not, so that they can have a better chance of getting that job.
Senator Tannas: I understand that, but I’m wondering if there is anything as unsubtle as judge-ready certification or a suite of courses. Of course, there are already courses in every walk of life and every profession. I’m not so naive as to not understand that politics comes into play with federal judge appointments and provincial judge appointments. It’s a fact.
What I’m hearing from you is that there is no such thing as an ICD course or a certification that would signal that this person has a well-rounded set of training aimed at being a good judge. There is nothing like that, right? And that’s not a good idea, in your view?
Ms. Savard: It’s not necessary because of the application process that I laid out for you.
The Chair: Thank you very much, Senator Tannas.
Senator Pate: Thank you to all the witnesses for appearing and for all the work you do on a daily basis.
I’ve read many of those applications that you just spoke about Ms. Savard, and I have to say that people whose behaviour does not much resemble what is in their application can learn how to write what they think needs to be in those applications, to respond to Senator Tannas’s point.
People who are involved in the development of this bill and in responding to things like the report that you did on the Robin Camp situation have talked about the fact that this version of the bill guts the essence of what was being proposed, which was that we often need written decisions. Right now, the burden will fall to those who are looking to challenge the decisions to actually get the transcripts and have them transcribed. In some jurisdictions, that can be incredibly expensive.
I’m interested in two things. One, do you have any other ideas on how this can be achieved? Two, there is a lack of supports for people who find themselves coming before the courts, in particular Indigenous women. The fact that now 44% of the women in federal custody are Indigenous underscores the problems that the National Inquiry into Missing and Murdered Indigenous Women and Girls and the TRC pointed out, have still not been resolved. How would you suggest we get at the intersections of racism, misogyny and the inability of a court that is still predominantly male, middle class and White — I know that is changing and becoming more diverse — to actually understand these issues?
I apologize Senator Tannas. I think that’s what you were asking too but, I’m providing an opportunity for further development on this topic.
Mr. Sheppard: I will hand it over to Ms. Formsma. She can put this in context based on our previous discussions.
Ms. Formsma: There’s a massive issue regarding access to justice here because we can’t rely on legal representation to be consistent and to bring forward all the necessary information for a judge’s consideration, which goes to knowing that judges only have a baseline of information. Lawyers do the best they can, but a lot of those able to represent Indigenous folks, especially the most vulnerable and marginalized, face challenges around legal aid and workload. I do think people do the best they can, but if they’re not educated, they aren’t able to put the best representation forward.
We’ve heard anecdotes and stories from our community members because friendship centres are implicated — and people think, “What are friendship centres doing talking about legal issues?” — we have community support workers, community people who don’t have legal training who end up having to provide legal supports to people within the justice system that have no legal training whatsoever. They’re there to provide support to people participating, to explain what’s happening if they’re not represented and to explain what happened after the decision has been made. People have a lot of questions: What does this mean for me? What does this mean for my family? What’s going to happen to my kids? Not just in criminal law but in family law as well. If the Crown doesn’t come forward on a certain day, can my kids come home with me tonight?
A lot of times, the decisions judges make implicate friendship centres. For example, if there are community service hours mandated, the judge will say, “Go to the friendship centre.” Then we, the friendship centre workers, have got so many people, we don’t know what else to get them to do for us. We have some friendship centres that hire staff lawyers. In one case, a friendship centre had $30,000 worth of tickets expelled from the court that had been provided to vulnerable community members.
I think there is an opportunity for education for judges regarding situations within their local communities that could provide information about what community supports are available. They’ll be able to ask themselves, “If I make this decision, what will it mean for this person?” — not that they don’t already, but I feel that’s a big part of it. The burden should not be on the people accessing justice through the courts to have to advocate for themselves with or without legal representation. Without the written reasons, it’s very difficult to challenge, as you mentioned, senator. Even for lawyers, getting access to transcripts can be a difficult system to navigate, so for those who don’t have any training or connections, it can be worse.
I could go on, but it shouldn’t be up to Indigenous women specifically to take on the burden of advocating for themselves, their children and their communities, while also being subject to the justice system. I’ll leave it there for now, but thank you for the question.
Ms. Savard: One practical addition — which we have suggested in our materials — to note is the increased use of appropriate expert witnesses and the related role the Crown attorney can play. As the previous witness said, it shouldn’t be on the people who are least equipped to educate the judges consistently. As you heard, legal aid problems often mean that it’s not in the defendant’s ability to put forward the kind of case-by-case instruction that might be relevant.
If a Crown attorney, for example, received appropriate training, which can be mandated on different vulnerabilities and issues that the complainants they interact with might face, then that Crown attorney might be better positioned to identify an appropriate expert who could come to court and say, in a public courtroom, in a way that would alleviate some of our concerns, “Here are the things you should be taking into account, Your Honour.” A piece of the justice system puzzle that could be beefed up is Crown attorney education and the calling of expert witnesses to fill some of these gaps on a case-by-case basis.
Senator Pate: I wanted to ask about the role of mandatory minimum penalties, but I won’t do that.
The Chair: I want to thank all the panellists. We learned a lot from you and thank you very much for coming today. We look forward to working with you in the future as well.
Senators, we will continue on this bill next Wednesday. Thank you very much.