Crim Crimin inal Co Court rt Famil ily Co Court rt Jud udge - - PowerPoint PPT Presentation

The Hon. Donna Martinson Q.C.

October 21, 2014, Fredericton, New Brunswick

Crim Crimin inal Co Court rt

Jud udge one

• ne

Famil ily Co Court rt

Jud udge tw two

Child Protection Court

Judge three

Immigration/ Refugee Proceedings

Judge/Adjudicator four

Criminal Court Family Court Woman Child Man

• 1. Challenges caused by court silos
• 2. My personal multiple proceedings epiphany
• 3. Looking for opportunities for change, not
• bstacles to change
• a. Barriers seen by Lawyers and Judges
• b. Common characteristics supporting coordination
• 4. Promising general access to justice

developments within the legal profession

• 5. Promising developments when there are two or

more proceedings.

• 6. How to Innovate together

• 1. Challenges Caused by

Court Silos

 National Judicial Institute B.C. Community

Consultation

• With Dr. Margaret Jackson and Dr.

Catherine Murray, Simon Fraser University

• Purpose to obtain information from people

and organizations who deal with issues of violence against women in their daily work

 Advised that lack of coordination is a

significant concern for women

• Is a dangerous disconnect that increases risk of

harm to women and children

• Little or no information sharing between courts
• Lack of coordination leads to inconsistencies and

gaps in orders relating to contact

• Criminal cases often given priority

 which can cause significant delay and  adversely affect a timely resolution.

Criminal courts order no contact, child protection authorities say the children will be apprehended if there is contact and family court focusses on the view that contact is in the best interests of children and grants unsupervised access.

NATIONAL JUDICIAL INSTITUTE DOMESTIC VIOLENCE PROGRAM DEVELOPMENT FOR JUDGES APRIL 2012 BRITISH COLUMBIA COMMUNITY CONSULTATION REPORT http://fredacentre.com/wp-content/uploads/2012/10/The-Hon.-D.- Martinson-National-Judicial-Institute-April-2012-B.C.-Community- Consultations-on-Family-Violence-Report.pdf

• immigration proceedings for immigrant

women, especially those without status:  adds another layer of complexity  Judges often are not aware of immigration consequences of orders

• Multiple processes cause increased stresses

which:  may escalate the conflict  which can result in an increased risk of harm

• women are required to “tell their stories”
• ver and over, often to a series of judges

both among and within proceedings

• women feel forced to “drop” charges

because they “can’t do it any more”, especially while taking care of children

• the more often women are required to be

in the same place as their partners, the more opportunities there are for abusive behaviour.

• inaccessibility of legal advice exacerbates

the problems

• litigation harassment and abuse, a

significant problem, can be compounded with multiple proceedings

• added challenges for particularly

marginalized, vulnerable women who also face other challenges such as obtaining day care, affordable housing, health care, access to education and the like.

• 2. Multiple Proceedings

My Personal Epiphany

Oregon Court BC Court Woman Man child

Supports:

 the extension of judicial communication from

communication between judges in different jurisdictions to communication between judges within a province or territory.

 adapting the existing judicial communication

guidelines and the step by step procedures to apply to such communications

 taking the matter back to their courts for

consideration.

• 3. Looking for Opportunities for

Change not Obstacles to Change

 Different nature and purpose  Focus in criminal cases on constitutionally

protected rights of accused person

 Different burden of proof  Different laws of evidence  Different requirements re pre-trial dispute

resolution

 Different consequences of conduct

Gen ener eral Common mmon Feat eatures es

Common legal questions arise Same support services and resources needed

Same people involved

Common use

• f Judicial

case management Common evidence, including expert evidence

Questions ns Crim imin inal Family ily Is the claim of IPV proven? Relevant to guilt or innocence Relevant to best interests If so, what was the impact of the IPV? Relevant to judicial interim release (bail) and sentencing Relevant to best interests and protection

• rder

decisions Is there a risk

• f future

harm? How is the question

• f risk

determined? Relevant to bail and sentencing Relevant to best interests and protection

• rder

decisions

Common L

• mmon Legal

Questi tions

• ns

Questi tions

• ns

Crim rimin inal Fa Family ily

Should the

• utcome

prevent or allow contact with the woman and or children? Relevant to bail and sentencing Relevant to best interests and protection

• rder

decisions How should children’s rights to participate be invoked? Relevant to guilt or innocence (testifying), bail, and sentencing Relevant to best interests and protection

• rder

decisions.

Common Features: Outc tcom

• mes

Have common goals: just, equality based

• utcomes that:

Address the

public lic in intere rest

in protecting women and children Instill public

lic confiden ence ce in

the justice system

In both, most

• utcomes (decisions)

are reached without a contested trial or hearing

Conte textu tual legal gal anal alys ysis s require ires:

• i. Comprehensive,

up to date knowledge about IPV and its impact

• ii. In-depth

knowledge of equality principles important to IPV cases

• iii. The ability to:

(a) identify women’s and children’s inequality by understanding their social context - their lived reality, and (b) to remedy the inequality

• iv. The ability

to understand and address

• ne’s own

perspectives, convictions and prejudices

“…the judge understands not just the legal problem, but the social reality out of which the dispute or issue before the court arose” … “Judges apply rules and norms to human beings embedded in complex, social situations To judge justly, they must appreciate the human beings and situations before them, and appreciate the liv lived re reali lity ty of the men, women and children who will be affected by their decisions.”

 Informed impartiality”, requires:

• 1. an understanding that there are

subjective elements to judging: “Like everyone else, judges possess preferences, convictions and – yes – prejudices.”

• 2. the ability to be introspective, open and

empathetic.

It is necessary in all IPV cases for:

 an equality based understanding of

• what is relevant generally
• what is relevant to risk of future harm

 equality based assessments of the credibility

• f women and children

 an equality based analysis of:

• existing and proposed laws
• existing and proposed principles of evidence
• existing and proposed court processes

• 4. Promising general access to

justice developments within the legal profession

 finds that the  “…family justice system is too complex, too

slow and too expensive….and too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve.”

The focus must be on the peo eople w who n need eed to use e the e system… Litigants and especially self lf-rep epres esen ented ed lit litig igants s are e not,

• t, as they are too often seen, an

n inc inconvenie ienc nce; they are why the system exists. …Until we inv involve t tho hose w who ho use use the he sy syst stem in in the he re reform rm p pro rocess, the system will not really work for those who use it…

…We should not be preoccupied with fair processes for their own sake, but with achieving fair and just resu sults s for those who use the system…” (emphasis in original) …Providing justice – not just in the form of fair and just process but also in the form of fair and just outcomes – must be our primary concern.”

“Overall, judges, tribunal members, masters, registrars and all other such court officers should take a strong leadership role in promoting a culture shift toward high efficiency, proportionality and effectiveness through the management of cases…”



 The administration of justice in Canada is

• fragmented. In fact, it is hard to say that

there is a system – as opposed to many systems and parts of systems…

…We can and must:

 improve collaboration and coordination

• across and within jurisdiction, and across and

within all sectors and aspects of the justice system (civil,

family, early dispute resolution, courts tribunals, the Bar, the Bench, court administration, the academy, the public, etc.)

 improve collaboration, coordination and service

integration with other social service sectors and providers as well.

Canadian Bar Association:

 Access to justice should be tailored to the

individual person and that person’s situation:

 …responding holis

• listi

tica call lly to both legal and non-legal dimensions so that access is meaningful and effective.” Working Group on Family Law:

emphasizes the importance of a holis istic ic, problem solving approach to dispute resolution.

 We need a fresh approach and a new way of

• thinking. In short, we need a sig

ignif ific icant s shif ift t in in cultu lture to achieve meaningful improvement to access to justice in Canada – a new culture

• f reform.

 The report recommends:

more re resea esearch to promote evidence based policy making

 Fut

Futures – Tran ansforming t g the D e Del elivery o

• f Lega

egal Servic ices in in Canad ada: a: No:

 idea,  institutions, or  model

should be sacrosanct.

 The key for the future for the legal profession

will be innovation.

• 5. Promising developments when

there are two or more proceedings.

• 6. How to Innovate together