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New Commissioner for Federal Judicial Affairs appointed

Marc Giroux, who has expressed some reservations about Bill C-337, the bill that would compel judges who hear sexual assault matters to take mandatory legal education, has been appointed as Commissioner for Federal Judicial Affairs, announced Federal Minister of Justice Jody Wilson-Raybould.

Giroux, a 1989 graduate of the Faculty of Arts at the University of Ottawa and three years later from the university’s Faculty of Law, has worked at the Office of Federal Judicial Affairs for the past 12 years, holding the positions of both Deputy Commissioner and Interim Commissioner.

The Office of the Commissioner for Federal Judicial Affairs (FJA) was created in 1978 under an Act of Parliament of Canada to safeguard the independence of the judiciary and put federally appointed judges at arm’s length from the Department of Justice. It also prepares a list of judicial vacancies, oversees the application process, supports the 17 judicial advisory committees that assess candidates, and prepares for the minister a list of eligible candidates from which to appoint. The commissioner and the office independent from the Department of Justice.

Tabled by interim Conservative Leader Rona Ambrose in February, Bill C-337 or the Judicial Accountability through Sexual Assault Law Training Act, appears to be a solid idea but has raised concerns over the independence of the judiciary.

Giroux, while deeming it to “completely fair and appropriate, in light of certain cases, that questions be asked about the training of judges in sexual assault law,” believes however that “the issue at stake is finding out the best way to achieve the objective.”

In testimony before the Standing Committee on the Status of Women this April, Giroux points out that the bill as it currently stands would have those who want to become judges complete education in the area of sexual assault law before they are appointed. As an administrator of the judicial appointments process, his office normally receives over 500 applications per year generally. This year however it has received 700 applications in less than six months.

“If education is to be provided before applicants become judges—that is, during the assessment process—and to a large number of candidates, our concern is that it will be more difficult to ensure they are properly educated, and that such training will not be exhaustive enough,” said Giroux.

“The important priorities of, on the one hand, ensuring an efficient assessment process for candidates, and on the other, ensuring that candidates are properly educated in the area of sexual assault law may come into conflict, and one or both of these priorities may suffer as a result. The effects in essence could be twofold: the assessment of candidates may be delayed, and on the other hand, the education candidates receive on sexual assault law may be less than adequate.”

Giroux believes that it may be best to provide such education once judges are newly appointed. The course could “perhaps” be approved by the Canadian Judicial Council.

Giroux has also shown that he has some mettle.

In 2014 Giroux, while FJA’s acting director, was involved in an imbroglio with the Public Service Commission, an independent agency charged with making appointments to the public service. But those powers can be delegated, in which case the PSC retains a supervisory function. The PSC granted the Federal Judicial Affairs its appointment and appointment-related powers — until it took away. And that in turn became the subject of a decision by the Federal Court of Canada.

Here’s what happened. The FJA has since 1996 coordinated the involvement of the Canadian judiciary in international exchanges and in judicial and court reform projects abroad. But in April 2011 the program was in danger of collapsing after the director of its international programs division unexpectedly quit.

Giroux, then the FJA’s acting director, approached Oleg Shakov, an Ottawa consultant who had done a similar job for the FJA from 2005 to 2009 and had the necessary skills and experience. Shakov initially declined but relented after another FJA official, Nikki Clemenhagen, proposed a one-year appointment. The new position was created, with an “English essential” language requirement. Shakov’s appointment became permanent in December 2012.

In 2013, the investigative branch of the Public Service Commission got involved after it conducted a routine audit of the Federal Judicial Affairs and “discovered” possible irregularities in the appointment process. After a documentary review, and interviewing several people, the investigation concluded that both Giroux and Clemenhagen acted improperly by tailoring the position’s language requirements to fit Shakov’s unilingual profile, and by opting for a non-advertised process without justification. As a result, the PSC revoked Shakov’s appointment “even though he had no hand in it,” suspended Giroux’s and Clemenhagen’s appointment powers, and rescinded the FJA’s delegated authority to reappoint Mr. Shakov to a different position.

But in 2015, days before Christmas, Federal Court of Canada Justice Danièle Tremblay-Lamer overturned the decision, holding that the PSC’s decision was unreasonable because it “failed to understand the quandary the FJA was in.”

“The choices made by the Acting Commissioner came within his broad managerial discretion, as intended by Parliament in enacting the Public Service Employment Act,, considering the situation with which he was faced,” said Justice Tremblay-Lamer in Shakov v. Canada (Attorney General), 2015 FC 1416. “His actions were an entirely reasonable short-term solution immediately available – and indeed it seems to have been the only possible decision.”

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