The Hon. Donna Martinson Q.C. October 21, 2014, Fredericton, New Brunswick
Crim Crimin inal Co Court rt Famil ily Co Court rt Jud udge one one Jud udge tw two Child Protection Immigration/ Court Refugee Proceedings Judge three Judge/Adjudicator four
Criminal Woman Family Court Court Child Man
1. Challenges caused by court silos 2. My personal multiple proceedings epiphany 3. Looking for opportunities for change, not obstacles 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” over 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
Woman Man child Oregon BC Court Court
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
Common legal questions arise Same support Same Gen ener eral services and people resources Common mmon involved needed Feat eatures es Common use Common evidence, of Judicial including expert case evidence management
Common L ommon Legal Questi tions ons Questions ns Crim imin inal Family ily Is the claim of Relevant to Relevant to IPV proven? guilt or best interests innocence If so, what was Relevant to Relevant to the impact of judicial interim best interests the IPV? release (bail) and and protection sentencing order decisions Is there a risk Relevant to Relevant to of future bail and best interests harm? How is sentencing and the question protection of risk order determined? decisions
Questi tions ons Crim rimin inal Fa Family ily Should the Relevant to Relevant to outcome bail and best interests prevent or sentencing and protection allow contact order with the decisions woman and or children? How should Relevant to Relevant to children’s guilt or best interests rights to innocence and protection participate be (testifying), order invoked? bail, and decisions. sentencing
Have common Address the goals: just, Instill public lic public lic in intere rest equality based confiden ence ce in in protecting outcomes that: women and the justice system children Common Features: Outc tcom omes In both, most outcomes (decisions) are reached without a contested trial or hearing
i. Comprehensive, up to date knowledge about IPV and its impact iv. The ability Conte textu tual to legal gal anal alys ysis s ii. In-depth understand require ires: knowledge of and address equality one’s own principles perspectives, iii. The ability to: important to convictions (a) identify women’s and IPV cases and children’s inequality prejudices by understanding their social context - their lived reality, and (b) to remedy the inequality
“…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 of 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, ot, 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 olisti 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.
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