Social Context Judicial Education

National Judicial Institute

T. Brettel Dawson

September 2000

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The Judicial Role

n “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Universal Declaration of Human Rights A.10

Judging in the 21st Century

n “The challenge for judging at the outset of the twenty-first century ... is to adopt a functional and practical approach which will promote justice and equality in the law and better ensure that the law meets the needs and reasonable expectations of the community.”

The Right Honourable Ted Thomas, New Zealand Court of Appeal.

Judicial Education

n High quality, continuous and accessible judicial education supports the excellence of the judiciary, promotes the effective administration of justice and helps preserve public confidence in and respect for our courts.

Canadian Judicial Council

n March 1994: endorsed judicial education programs on “social context issues” including “gender and race (aboriginal peoples, blacks, and other visible minorities)”, which are “comprehensive, in-depth, credible”.

n September 1997: Chief Justices commit “to providing opportunities for the judges in each of their courts to attend the NJI’s social context programs in at least each of the three areas of gender equity, racial equity and aboriginal justice.”

Social Context Education

“a program of study designed by and for judges to increase our awareness and understanding of principles of equality and fairness in an era of rapid change within the society in which the judicial duties are performed. The ultimate goal is to become better judges.”

Justice Elizabeth Roscoe, NS Court of Appeal, 1997

Program Objectives

1. Examine the impact of context on concepts of judicial independence and judicial impartiality.

2. Examine equality jurisprudence.

3. Link issues of equality and fairness to the everyday work of judges.

4. Educate about experiences of inequality and diversity within disadvantaged groups.

5. Encourage reflection on the decision-making process, discretion, the role of knowledge, experience and choice in judging, and on inherent power dynamics.

Premises

n a long-term process rather than a one-off or series of conferences.

n an intellectual (cognitive) component, and also

n introduces analytical approaches which may be new to many judges.

Dean Lynn Smith, UBC, Report for the Canadian Judicial Council.

Judicial context:

Judges are:

n Adult learners; approaches must be varied

n Give advice and don’t receive advice

n Are skeptical by training

n Are used to being taught by other judges

n Can choose not to attend programs

Concerns

n “involving the community is risky”

n “judicial independence can be compromised”

n “possible attempt at indoctrination”

n “might cater to special interest groups”

n “this is just political correctness”

n “unnecessary because judges are sophisticated”

n “judges have already ‘done’ social context education and deal with issues regularly

n “non-judges preach at judges”

Two Clear Messages from Judicial Advisors:

n Senior judges should be involved in planning the education programs

n Members of the judicial education committees should be freed up to work with the NJI to develop local programs reflecting the priorities within their province.

Principle 1

n SCEP/NJI has co-ordinated a process of curriculum development; it has developed and shared resources; and maintained a national network of expertise related to law, pedagogy, inter-disciplinarity and community involvement. It has received advice and guidance from a national judicial needs assessment in 1997 and from its Advisory Committee and Program Development Group.

National Judicial Institute

n Special Directors

n Justice John McGarry (Aug 1996- Mar 2000)

n Judge (now Justice) Donna Martinson (Aug 1996-May 1998)

n Justice Donna Hackett (August 1998 - )

n Coordinators

n Professor Rosemary Cairnsway (Jan 1997-June 1999)

n Professor T. Brettel Dawson (Jul 1999 -)

Advisory Committee

Ms. Heather Chandler

Nova Scotia Barrristers’ Society

Halifax NS

Mr. Paul Chartrand

Royal Commission on Aboriginal Peoples

Professor Gisèle Côté-Harper

Faculté de droit, Université Laval

Mr. Ed Eduljee

Former Director, Multiculturalism BC

Justice Casey Hill

Superior Courtof Justice

Dr. Maggie Hodgson

Edmonton, Alberta

Dr. Sheilah Martin Q.C.

Faculty of Law, University of Calgary

Justice John F. McGarry

Ontario Court of Justice

Judge Graydon Nicholas

Provincial Court of New Brunswick

Ms. Yvonne Peters

Winnipeg, Manitoba

Justice Elizabeth A. Roscoe

Court of Appeal of Nova Scotia

Judge Micheline Rawlins

Ontario Court of Justice

Juge François Rolland

Cour Supérieure du Québec

Justice C. Lynn Smith Q.C.

Supreme Court of British Columbia

Professor Diane Labrèche

University of Montreal (ex officio)

Professor Rosemary Cairns Way

University of Ottawa (ex-officio)

Program Development Group

Dr. John Borrows

Faculty of Law, University of British Columbia

Mr. Ron Friesen

Director of Education, Continuing Legal Education Society of BC

Professor Nitya Iyer

Human Rights Tribunal of British Columbia

Professor Diane Lebrèche

Faculté de droit, Université de Montréal

Dr. Sheilah Martin Q.C.

Faculty of Law, University of Calgary

Justice Selwyn Romilly

Supreme Court of British Columbia

Professor Joanne St. Lewis

Faculty of Law, University of Ottawa

Principle 2

n SCEP has worked in close partnership on individual program development with local judicial education planning committees. This element has assisted clear communication, fostered judicial ownership and ambassadorship for the program and ensured that local programming needs are met. These committees have been appointed by the Chief Justice and have been comprised of judicial leaders

Principle 3

n Two forms of programming have been developed: Judicial Faculty Development and Full-Court Introductory Intensives of up to 2.5 days. A community consultation process has also been commenced.

Faculty Development

n The premise of faculty development programs has been that the best way to provide a positive learning experience for judges is to use peer leaders who are committed to, and trained in, equality principles, and who understand the needs of adult learners.

n 2.5 days, residential

Full Court Intensives

n Broad themes in plenary:

n impartiality; equality; fairness

n Practical issues; demographic profile

n Discussion Groups

n Active working sessions on specific topics with resource persons

n 2 days or 2.5 days, residential

Principle 4

n Programs have been developed in a manner that understands and respects the role of the judiciary and the complexity of the issues judges face. We have also held to the view that programs must be credible from the perspective of both judges and non-judges. Emphasis has been given to practical examples relevant to the everyday work of judges.

Principle 5

n The programs have reflected adult education principles fostering active learning through engagement/discussion, problem-based learning, and carefully planned small group work. Substantively, programs have been organized around themes of judicial impartiality, equality and fairness in a diverse society. Plenary sessions introducing themes and issues have been complemented by focussed and in-depth work in small group judge-led settings such as discussion groups and topical workshops.

Principle 6

n Members of the judicial education committees for particular intensive programs, together with additional judges responsible for workshops or discussion groups in those programs have attended judicial faculty development programs. These programs have examined substantive social context themes, and developed facilitation and program design skills in an introductory way and addressed the role of community involvement.

Principle 7

n The planning process has involved curriculum design (consulting with the court and community members, preparing specific goals and objectives, time agendas, focus and responsibility for individual sessions, invitations and planning with conference faculty), and content design (selecting or commissioning appropriate material).

Principle 8

n While agenda development has been judge-led, community leaders, representative and frontline workers familiar with disadvantage and diversity have been directly involved in the planning of content and the delivery of programs. Their participation, and our initial efforts at community consultation, have been an important element of program development and delivery. Information which is not often accessible to judges has been made available in a setting where it can be the subject of questions and discussion.

Curriculum: Plenary Topics

n Judging and Diversity

n Judicial Impartiality and the Judicial Role

n Equality and the Work Judges Do

n Aboriginal Justice: Bridging to the Future

Workshop Topics

n 1. Poverty And Access to Justice

n 2. The Use of Language -- Naming And Labelling

n 3. Violence Against Women And Children

n 4. Sentencing (With A Focus on Aboriginal Peoples)

n 5. Jury Selection And Other Equality Issues Arising in Jury Trials

n 6. Family Law Issues in A Multicultural Context

n 7. Credibility Assessment

n 8. The Unrepresented Litigant

n 9. Third Party Disclosure

n 10. Restorative Justice in The Superior Courts

n 11. Equality - “The Growth Industry For Canadian Courts”

n 12. Sexual Orientation And The Law

n 13. Disability Issues

n 14. Recognizing Disabilities

n 15. Judicial Notice

n 16. Expert Evidence of Race And Culture

n 17. Oaths/ Language/ And Cultural Interpreters

n 18. Systemic Racism -- the Use of Discretion in Bail, Sentencing and Other Dispositions

n 19. Literacy

n 20. The Experience of Discrimination/understanding Inequalities

Discussion Topics

n Impartiality / Judicial Independence

n Impartiality: The Best Interests of the Child

n Racism, Impartiality and Judicial Notice

n Perceptions of immigrants, visible minorities and Aboriginal Peoples about the administration of justice

n Application of the law and the administration of justice

n Judging and Diversity

n Understanding Social Context

n Violence and Vulnerability

n Cultural Difference

n Disqualification

Comments

n “Great seminar. At the start I was not sure it would be of much help. I was wrong.”

n “opened for consideration a very broad range of concerns which have direct bearing on the daily exercise of our functions”

n provided “much food for thought.”

n appreciated opportunity in small group discussion and workshops to “share experiences and gain experience with fellow judges.”

n “particularly enjoyable to have all 3 levels of court together to share views” and “observe the viewpoint of members of different benches.”

Successful because:

n Supported by Chief Justices

n Education committees have been prepared and have worked effectively with the NJI

n Programming has been developed in a manner that understands and respects the role of the judiciary.

Phase I Achievement

n Premise: an integration-based approach would not be effective until a large number of judges has had the opportunity to participate in special programming focused on social context issues, thus creating a common base of information and understanding. Now achieved through 25 programs offered across the country to some 1000 judges.

Where do we go from here?

“A long term process rather than a one-off or series of conferences.”

Dean Lynn Smith

Phase II Objective:

n to weave advanced and applied social context education substainably into the fabric of judicial education through building capacity in the areas of faculty development, integration, community involvement and resources.

Phase II Faculty Development

n The purpose of the advanced faculty development will be to develop judicial leaders who are skilled in ‘stand-alone’ and integrated judicial social context education programming. At the conclusion of the program, the judges will be in a position to provide continuing leadership in their own courts and will have a set of skills and a network of colleagues engaged in integrated programming across the country.

Phase II: Integration

n The objective will be to reach a place where relevant social context issues and approaches can be integrated appropriately, practically, and thoroughly into all formats of judicial education. The initial focus will be on NJI programming.

Phase II: Community

n Implementation of a more systematic processes of community consultation. Consultation can itself provide educative opportunities. It can also facilitate appropriate community involvement in planning and delivery of judicial educational programs.

Phase II: Resources

n Development of in-depth, systematic and accessible resources related to programming/curriculum, research documentation, and expertise in the area of social context that can be sustained in the NJI information infrastructure; a national clearing house, independent study materials.

Phase II: Programming

n Staging of a national conference

n Development of program modules in areas such as credibility and decisionmaking, domestic violence etc.