A Visit to Canada: Canadian Judicial Education in 1993

In view of the interest being shown in Canada in some of my blogs, I thought it might be of interest if I reproduced the report I wrote following a fascinating visit to Ottawa and Victoria BC in March 1993.  I was hugely impressed by the overall quality of Canadian judicial education, and I think that this report helped our own Judicial Studies Board to develop its thinking in a number of important ways.

What I did not report was that in the session devoted to comparative sentencing outcomes on a conviction for “date rape” in the four Western provinces, the results, based on current guidance from the superior courts, showed a range of three years imprisonment in Alberta to a probation order, coupled with a  bit of re-education, in British Columbia. When I whispered to my Albertan neighbour that the starting point in England would be five years, she whispered back: “I want to emigrate”.

A Visit to Canada

A report to the Judicial Studies Board and its Ethnic Minorities Advisory Committee, dated 13th April 1993

 

Trevor Hall and I visited Canada on behalf of the Judicial Studies Board between 19th and 29th March 1993. We found that in many respects the Canadians’ approach to modern judicial education was a long way ahead of what we have so far achieved in Britain. It must always be remembered , however, that the transatlantic “culture”, particularly among senior professional people, has always tended to be more receptive to new learning than the prevailing culture on this side of the Atlantic , that some judicial appointments in Canada are more overtly political than ours, leading to the appointments of men and women who do not necessarily have the same courtroom experience of their English counterparts , and that the great distances in Canada – particularly in Western Canada – may tend towards greater judicial isolation unless   real efforts are made to bring Canadian judges together at regular training events. However, with all these reservations, it was obvious that in many respects contemporary Canadian thinking about the ways in which the executive ought to be making resources available in an organised way for training the judiciary without impairing its independence was a long way ahead of anything which has so far happened in England.

There are two types of judge in Canada: federal judges, appointed by the federal government, and provincial judges, who have a more limited jurisdiction, appointed by the provincial government .   There are no part-time judges (it is regarded to be an affront to judicial independence that someone should be an advocate one day and a judge the next), and no lay justices exercising jurisdiction in court. In 1987 there were said to be a total of 1,702 judges of all kinds (Ontario 477, Quebec 446, British Columbia 210, Alberta 185, Saskatchewan and Manitoba 87 each, Nova Scotia 71, New Brunswick 53, Newfoundland 46, Prince Edward Island 10, North-West Territories 6, Yukon 3, with 9 in the Supreme Court of Canada, 27 in the Federal Court and 12 in the Tax Court): a comparable figure of 1,900 was given to me for 1993 .   Until the mid-1980s there was a rather confused pattern of judicial training, which led to the appointment of Mr Justice Stevenson, then Chief Justice of Alberta, in November 1985, to undertake a year-long study of needs and resources with a view to the establishment of permanent educational programmes available to all judges in courts in Canada .

This was a joint appointment by the Chief Justice of the Supreme Court of Canada and the Minister of Justice and Attorney General of Canada, and in October 1986 the Stevenson Report, of which I have a copy, recommended the creation of a national judicial education service for Canada.   The term “judicial education” was understood to embrace all means of providing information to the judiciary outside the adjudicative process. The report was based on extensive consultation, a survey of the 1,702 Canadian judges, an inventory of existing training programmes, the responses to a set of proposals published in a consultation paper, and the comparative study of programmes available in the United States, Great Britain and France.

The main findings of the Report were that existing Canadian training programmes showed uneven coverage, with significant gaps and deficiencies, duplication, and a lack of co-ordination with a consequent waste of resources. There was also a shortage of substantial professional organisation and presentation.   What was seen to be lacking in Canada was any national co-ordination of resources, any effective means of exchanging information or any adequately funded long-range planning capacity.   There was no national body with a permanent staff developing effective teaching techniques , no agency with the ability and capacity to respond to national needs, and no one agency in a position to provide a national response to significant legislative changes or amendments to the Criminal Code. Large parts of the judiciary were left unaided.

The National Judicial Institute in Ottawa, which Trevor Hall and I visited on 22nd March, was the product of the Stevenson Report. It has a small suite of offices situated within the grounds of Ottawa University.   It was founded in 1987, with a mandate to provide a wide range of educational programmes and services to all Canada’s judges, regardless of the source of their appointment: it offers programmes and services in all the provinces . Its mission is to foster a high standard of judicial performance through programmes which stimulate continuing professional and personal growth, and to engender a high level of social awareness, ethical sensitivity and pride in excellence within an independent judiciary.

It has six express objectives :

    1. To update continuously the identification of the needs of the Canadian judiciary for education, including skills training, professional development and personal growth;
    2. To maintain an inventory of information concerning programmes throughout Canada which are related to judicial education and to disseminate it to the judiciary;
    3.  To develop (and to assist courts and co-operating agencies in the development of) programmes to meet the needs of the judiciary for judicial education;
    4.  To develop and deliver educational programmes in order to make them available to the judiciary as widely as possible;
    5.  To provide technical and organisational services to the courts and other agencies in the delivery of their services;
    6.  To keep the Canadian judiciary informed about new legislation and other developments of particular interest to the judiciary and to develop programmes to achieve these ends.

For the first five years of its existence the full-time Director of the NJI was Mr Justice David Marshall, a federal court judge. Since he returned to the Bench last year, there have been a   series of acting directors, and I was told that an academic lawyer may soon be appointed the new Director.   Trevor Hall and I met two of the full-time professional staff , Sheila Redel (the Director of Information and Publications) and Adele Brunet (the Director of Programme Delivery, who was responsible for developing the race relations programmes). The Acting Director, a Provincial Court Judge, was away when we called.

The NJI has been developing three main types of service: the organisation of major national seminars, the creation of workshop modules, and the provision of a wide variety of other educational resources for the judiciary .

Examples of the seminars, which are held across Canada, include seminars for appellate court judges, seminars on case-flow management, on criminal procedure and evidence, on the conduct of a complex trial and on computers for judges (at three different levels)   Seminars are now also being planned on intellectual property, family violence, judicial leadership and race relations.

The workshop modules may be combined to make up longer, “made to measure” educational programmes and are offered locally on request from a local court . They are flexible and are designed to integrate local considerations into the presentation.   These cover much the same ground as the national seminars, but also include such items as Gender Equality, Judicial Ethics, Aboriginals and the Courts, Stress Management and Time Management.

The other educational resources available to all judges include a quarterly bulletin newsletter, a judicial information database, videotapes on a variety of subjects, the circulation of articles of interest to judges, an educational package for all new judges, and public relations services on judicial education.

We were told that the NJI is paid for its services by the organisation which requests them. In each province, there is a judicial education committee which reports to the chief judge, in the same way that the education committee of the federal Canadian Judicial Council reports to that council. Unlike the Judicial Studies Board , the NJI does not, therefore, have to bear out of its budget the costs of staging events, let alone the cost of paying part-time judges to attend them or paying the travel and subsistence expenses of judicial trainees.

Their early experiences with race relations programmes has been mixed .   We were told of a recent two-day seminar arranged for 60 Queen’s Bench judges (i .e. federal) judges in Manitoba, where   there had been a recent commission of inquiry into the bad treatment of aboriginal natives by the criminal justice system (I was given a copy of the report).   The NJI had hired a consultant who was very helpful in designing the programme, and they have found that an introductory talk by a distinguished anthropologist, who explains the difference between race and ethnicity, is always very successful.   However, they had arranged too large a panel of speakers, and feedback and their own observations suggested that they would have done better with half the number.   They have not used participative workshops much yet, and their modular seminars are mostly based on talks and discussion in plenary sessions.

We were told that in addition to the Director and Associate Director (who have until now been seconded judges), the NJI has four full-time directors, and a total of 11 or 12 executives with support staff.   The Director is a member of the Education Committee of the Canadian Judicial Council, which has a representative on the Board of the NJI, so that there are good reporting lines.   There is core funding of C$600,000 (currently the sterling exchange rate is about C$1.7: £1), and a budget of about C$1 million for the provision of courses. Judicial education is not compulsory, although most judges take part in it, encouraged by their chief judge or chief justice, and on average a Canadian judge receives five days of judicial education each year. Curiously, he or she is not obliged to attend a training course before appointment, when they receive a big binder of advisory materials and videos (including a gender equality video) from the NJI, although they will almost certainly attend an introductory course during their first year of sittings.

We were shown the NJI’ s new race relations video, which will soon be issued to all 1,900 judges, together with training material. The NJI received a grant of C$125,000 for this project from the Department of Multi-Culturalism (the video has to be shown in both English and French). The NJI engaged a primary researcher (who identified scenes illustrative of familiar misconceptions, misunderstandings or stereotyping) and a video director for this project, which was under strict editorial control, and it was assisted by an EMAC-like Advisory Committee drawn from all over Canada, which met on one occasion for a brain-storming session, and otherwise advised at long distance.   We were given a copy of the    video, and I hope it will be possible to  change it  into English format and show it at the EMAC Away-Day, or soon afterwards. There are, I think, four scenes, with commentary by a very experienced Canadian judge and by representatives of different minorities.

On 23rd March we visited the offices of the Canadian Judicial Council, which are close   to the Supreme  Court building in Ottawa . This has an executive secretary and two support staff: its annual expenditure in 1990-1 was just    over    C$800,000.   The Council was created by Parliament in 1971 “to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts and county courts and in the tax courts of Canada.”  The Council, which meets twice a year, consists of the chief justices (or chief judges) and the associate chief justices/judges of all courts whose judges are appointed by the Federal Government, and it is chaired by the Chief Justice of Canada.   Section 60 of the Judges Act empowers the Council, in the furtherance of its mandate, to establish seminars for the continuing education of judges, and Section 41 of that Act provides funding for judges’ conferences and seminars and for the expenses incurred by judges in attending other conferences and seminars not organised by the Council.

The Council’s Judicial Education Committee, which in 1990-1 included five Chief Justices, two Associates, the Director of the NJI and an Academic Consultant, organises an annual Canadian Judicial Council seminar and annual seminars on judgment writing and for new federally appointed judges. It also authorises judges to attend conferences and seminars (both in Canada and abroad) at the expense of the federal government over and above those which can be authorised by local chief justices, or those which judges may be required by their own local provincial legislation to attend .    We were told that expenditure incurred on sending Canadian judges to conferences and seminars at public expense had increased from C$1 million to C$2.7 million in the last three years, and that it was likely that the arrangements for funding pursuant to Section 41 of the Judges Act might be replaced by alternative, less centralised, arrangements. (This was the source of the funding which sent 15 Canadian judges to Edinburgh at public expense in August 1990 for the conference on Race and Gender Issues in the Criminal Justice System, which I was the only English judge to attend, paying all my expenses out of taxed income).  This federal funding also sends 50 federally appointed Canadian judges out of Canada to the seminars organised by the Canadian Institute for Advanced Legal Studies at Cambridge University (every other year), Strasbourg (for six days in July 1992) and Stanford University in California .

In addition to the opportunities provided by judicial education programmes and Section 41 funding for federal judges, a committee of the Canadian Judicial Council, which includes members of the Council of Canadian Law Deans and the director of the NJI, is responsible for the selection arrangements for the National Judicial Study Leave Fellowship Programme. This provides for study leave between 1st September and 31st March, and is open to all federal judges who have served for 10 years and who are not within four years of retirement. The aim of the programme, through which two or three judges each year are attached to a Canadian university or similar institute of learning, is to enable the judge to engage in research, training or related activities at a Canadian law school or cognate institution so that he or she can return to the Bench better equipped to carry out his or her judicial duties; to provide Canadian Law Schools or cognate institutions an opportunity to have experienced jurists participate in and contribute to research, teaching and related activities of benefit to faculty and students .

The annual seminar, to which English judges such as Mr Justice Otton and the Lord Chief Justice (long before his present appointment) have been invited in the past, rotates around the country. It is limited to 100 federally appointed judges from all over Canada , and it provides them with a four-day training seminar , whose objective is to enable them to receive an update in substantive and procedural law topics in small group settings from judges and selected academics. Other judicial seminars and conferences, all of which are now identified in the publications of the NJI, are organised by an independent non-profit making organisation called the Canadian Institute for the Administration of Justice.

Although we did not visit its headquarters, this is  an appropriate moment to describe the work of the Canadian Association of Provincial Court Judges (“CAPCJ”), whose executive meets twice each year. There is a local association of these judges in each province to represent its members on issues of local concern, each of which has an education committee, and the national association unifies all their efforts.   Its first aim and objective is the discussion and study of the administration of justice in Canada, and judicial education is seen to be of the highest priority. The CAPCJ is responsible for a six-day New Judges’  Programme, which is offered yearly, and it provides other specialist seminars . In Eastern Canada a three-day judicial education refresher programme, called the Atlantic Conference, is held for about 35 judges from the four east coast provinces and in Western Canada the scene has been dominated since 1984 by the WJEC (Western Judicial Education Centre).

This was founded in early 1985 as an  Institute based at the Faculty of Law in the University of British Columbia, to co­ordinate and supplement the educational programmes for the provincial court judges of the four provinces of Western Canada and the two northern territories.   It has always had a judge (currently Judge Douglas Campbell) as its part-time director, and he reports to the CAPCJ through the Director of the Canadian Judicial College, which is the CAPCJ’s educational organisation. The chairmen of all the relevant provincial and territorial education committees formally act as advisers to the WJEC, as do the Deans of each Law School in Western Canada and the Directors of Continuing Education in each of the four Western provinces, and the relevant chief judges also act as informal advisers.-

Although it has also organised ten small two-day “Delivery of Reasons” seminars for ten judges at a time over the last three years, the WJEC’s principal recent achievement has been the Western Workshop Series.   This involved the holding of four six­day training programmes for 70 judges at a time, in different parts of Western Canada in each year, whose fundamental purpose was, through education, to implement beneficial change in judicial practice in areas of strong social concern, particularly in the field of sentencing aboriginal natives and in gender neutrality in decision-making.   The funding of core costs came from the Law Foundations of the four provinces and two territories, the federal government paid the accommodation and subsistence expenses, and the provincial and territorial courts paid the travel expenses. This series culminated in the major training congress, attended by 300 of the 330 provincial court judges in the area, all led by their chief judges, which we attended later in the week: for the future, economic retrenchment means that smaller training programmes are likely to be taken to judges at their own centres .

It was obvious to me that one of the great strengths of the Canadian arrangements was that the operational judiciary form an integral part of the arrangements which are made for judicial education.   They, in consultation with the appropriate federal or provincial ministries of justice, are responsible for judicial education, and they are also the paying clients for the services which are provided by the judicial education-providing bodies. Leading academics are naturally drawn into the arrangements for judicial education, which is therefore the beneficiary of all that is going on in modern training techniques without in any way detracting from the principle that the education is directed by the judiciary itself without any impairment of its independence. In England there are no particularly clear reporting lines for the Judicial Studies Board to the operational judiciary.   It publishes a Report addressed to the Lord Chancellor about its activities once every three or four years, but I am not aware of any direct reporting lines to the newly reconstituted Judges’ Council or to the Council of Circuit Judges or the Association of District Judges.  In Canada, both the NJI and the Canadian Judicial Council publish Annual Reports, which make clear to the public each year what is being done in the world of judicial education, at what cost, and how it is organised.

Later on 23rd March we visited the Department of Multi­Culturalism, which is just over the river from Ottawa in the city of Hull, Quebec, and met Mr Hani Mokhtar, the Executive Director of the Multi-Culturalism Secretariat.   on 23rd March we visited the Department of Multi­Culturalism, which is just over the river from Ottawa in the city of Hull, Quebec, and met Mr Hani Mokhtar, the Executive Director of the Multi-Culturalism Secretariat.   He told us that in addition to the funding of the NJI video, the Department had been providing annual funding (including travel costs) over the last few years of about C$140,000 – C$150,000 to the Western Judicial Education Centre. This year the Department was providing funding of C$99,000 towards the costs of the Congress we were attending later that week in addition to the funding provided by other federal departments (such as the Department of Health & Welfare on training on family violence issues, and two or three other departments on gender issues).   He said that nearly 90% of the provincial court judges in Western Canada had been touched by multi-culturalism education programmes funded by the Department, and that Ontario was now becoming interested . No progress had yet been made in Quebec. He regarded the NJI as being principally concerned with federal court judges.

He said that recently a group of Ontario-based provincial judges had approached the Department for funding for a project concerned with young offenders. There was considerable public concern along the lines that young people now felt they couldn’t be touched by the authorities, and the judges were interested in how this affected members of visible minorities who were targeted by the police. He said that departmental funding was provided for new projects very much by feel at first before the projects got established.

He said that the immigration of members of visible minorities did not really start until 1968.   There was a major influx in the1970s, and Canada was still receiving 250,000 immigrants each year. Inter-marriage between people from different ethnic communities had always been very substantial: 62% of the population of Toronto, which is currently experiencing very serious difficulties which are being examined by a Commission of Inquiry, have one parent who is neither British nor French. The composition of the population changes significantly in different areas: for example it was 25% Asian in Vancouver, a much higher proportion than elsewhere, and there were also significant numbers of aboriginal natives in Canada, mainly on the reserves, with serious education problems.   In the interior of Canada, the proportion from visible minorities was going up very steeply, and the criminal justice system was under severe pressure, with five commissions of one kind or another set up in different provinces in recent years. The judiciary was not in the forefront of criticism, but it was generally blamed for believing the police, who  were entirely independent from province to province, with no scope for imposing national standards. He said that he did not know why Ontario was lagging behind in training on race issues, but it tended to be very conservative: close to half the new immigrants now go there, and about 30% of the population there comes from visible minorities.

He told us that the Department was now a separate Department headed by a Minister.  It had a budget of C$2 million for headquarters costs (and some more for regional offices, and a 1991 budget of C$7.5million (currently being cut to C$7 million) for grants and contributions: he instanced the police, the justice system, the private sector and schools as recipients of aid. He said that the objectives of the department were the elimination of discrimination and racism, and their chosen methods were to influence institutional change and to increase public education and awareness.   A disproportionate part of their resources were being devoted to the schools, where severe discrimination was occurring, and to the police, and they strongly believed in working from within the organisations they were trying to help. He bestowed high praise on the quality of judicial training programmes on race issues, particularly in Western Canada.

Between 24th and 27th March we attended the Western Provincial and Northern Territorial Judges’ Congress (organised by the WJEC) which was held in a very modern conference centre in Victoria, British Columbia. Its goals were:

    1. To increase knowledge and understanding of important changes and trends in Canadian life that are affecting and will affect private behaviour, public order, social constraints and relations, and public discussion of public institutions and social services, and to consider the implications for the roles of the Courts and sustained respect for the administration of justice.
    2.  To enhance essential judicial skills in research, assessment of evidence and fact finding, dispositions, explanation of rulings, and other functions of the judicial office.
    3.  To consider the role(s) of the judge and the courts and professional, institutional and procedural measures that will sustain the effectiveness and status of the courts in the changing environment.
    4.  To study recent or pending legislative changes and various suggested alternatives to current procedures, and their implications and application.
    5.  To increase knowledge and awareness of community and social service structures and resources which might assist and complement the work of the courts .

In other words, there was something for everybody, and it was all very hard work and very enjoyable.   Throughout the three days there were hardly any set piece talks of any length.   Instead, videos and overhead projectors and lighting effects and role-play (including imported actors) and participative group work were used, with the occasional plenary session. A three-hour workshop on criminal procedure, which I attended, was founded on a training video of ten courtroom scenes illustrating different issues recently addressed by higher courts: at the end of each scene questions were flashed up on the screen, and in groups of eight we worked out the answers, and there was a panel of “experts” (including a federal court judge and a QC) to give us authoritative answers on each problem and refer us to the written training material.   On sentencing for sexual assault, a problem was set, we each wrote down the sentence we would have imposed, then listened to the “judgments” prepared beforehand by a judge from each of the four provinces (whose individual sentencing standards are inconsistent with each other), and these judgments were then the subject of comment by a woman graduate student specialising in feminist issues from a local university, a clinical psychiatrist (who thought the defendant a poor candidate for the group therapy to which many judges wished to sentence him after a very short custodial sentence) and a very experienced defence lawyer .

So far as training on race issues was concerned, this was the subject of one of the presentations in an early plenary session, and I attended a workshop devoted to Circle Sentencing in the Yukon, and another entitled “Fact-Finding in a Cross­ Cultural Context”, which was built round a clip from an American training video known to Trevor Hall and myself.     There were also at least two moving speeches from representatives of aboriginal communities, whose elders played a leading role in the Opening Ceremony, which was also punctuated by singing and dancing from children from all over the world attending the local Lester Pearson College.   On the Thursday night we were invited to the Bighouse in the grounds of the local British Columbia Museum, where members of the local communities spoke very movingly at the side of a big log fire, and we were also entertained by local native dancing.   But the strength  of the Congress was that racial issues were not addressed in isolation: they were addressed alongside issues of stereotyping concerned with gender issues and the treatment of the mentally handicapped and other issues of contemporary social concern.

In conclusion, there is a great deal we have to learn from the Canadians in the field of judicial education, although in some respects, particularly in the handling of inter-community  relations in the big cities, they are still some way behind us in England, as we learned when we spoke at length to the two members of the Commission on Systemic Racism in the Ontario Criminal Justice System who attended the Congress. What I found most impressive, apart from the harnessing of modern training techniques, with very little expense spared, to make the learning experience thoroughly enjoyable, was the rigid attention to training needs analysis, the way in which training judges and educationists worked together to deliver training in accordance with objectives set in conjunction with operational judges, and the way in which very large sums of money were allocated from different areas of public funding once the training objectives had been identified to the different funders, without any impairment of judicial independence. Judging is a lonely business, and judges need to get out of their courts more often to think, and to share their thinking with others, and the Canadians provide a very good example of how it can be done.

 

 

3 thoughts on “A Visit to Canada: Canadian Judicial Education in 1993

  1. Richard Mosley

    Very interesting Henry. Thank you for sharing your 1993 report. I was aware of some of the NJI history but not all that you relate. Two of my colleagues were actively involved in the Institute’s work during that era. And I still have a WJEC coffee mug from a visit to one of their seminars in the 90s to brief them on recent and proposed criminal legislation.

    And congratulations on your CLAWBIE nomination. Well deserved.

    Like

  2. Pingback: David Lammy’s Review of Criminal Justice: My talk on Sentencing in 1993 – Henry Brooke

  3. Pingback: A need for greater empathy (2) – Henry Brooke

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