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Ian Greene

Court Organization and Management January 19, 2012 Judicial Independence: The Challenge of Race & Gender. Ian Greene. Class Organizational Matters. Group Presentations (class web page) Final essay: see Justice on Target Statistics (class web page) Internships

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Ian Greene

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  1. Court Organization and ManagementJanuary 19, 2012Judicial Independence: The Challenge of Race & Gender Ian Greene

  2. Class Organizational Matters • Group Presentations (class web page) • Final essay: see Justice on Target Statistics (class web page) • Internships • Students requiring internship for grad diploma: Ahmed, Ahmadi, K., Ahmadi, N., Barakat, Cabral, Chendamarai, Harvey, Kanagasabapathy, Karmali, Khan, Mloka, Motavalli, Segal, Sihra, Stone, Zamir (16)

  3. Greene: Ch 3, The CourtsInclusiveness (judges covered last week) • Should lawyers be representative of the larger population? • What were the barriers to becoming lawyers faced by some groups in the past? • To what extent are lawyers representative of the larger population today? • Stats inlcude both lawyers and “notaries” in Quebec & BC. Data also available for paralegals & legal secretaries • Nearly all lawyers have attended university, compared with 82% of paralegals & 58% of Can labour force who have some post-secondary education

  4. Representativeness of lawyers • Average salaries of lawyers 1996: $81, 500. 1991: $87,300 • Paralegals: $36K, legal sec’s: $29K both years • 1996: 31% lawyers were women • 79% of paralegals & 99% of leg sec’s women • Women lawyers 6 years younger than men • Women in legal profession face barriers to career advancement: Justice Bertha Wilson, who nearly withdrew from law school because no other women in her class

  5. Justice Wilson, “Touchstones for change: Equality, diversity and accountability” (1993) • Women in law firms • Discrimination ranges from overt sexism, to reluctance to accommodate work-life balance • Why do only 1/2 to 2/3 of law graduates (men and women) end up practicing law? • Women lawyers complain of discrimination in court by male judges • Women judges: two levels of discrimination • That which affects women generally • Affects a woman judge’s ability to discharge her office

  6. Wilson (cont’d) • 132/200 of women judges responded to survey • 43% said they had experienced discrimination by mail chief judges (Provincial Courts) or justices (federally-appointed) • Much of the discrimination occurred at initial arrival • Feminists not suited for judgship • Resentment that appointed merely because they were women • Would not be scheduled to sit on cases involving sexual assault or serious criminal matters • Initial judgments based on stereotypes not recognized by CJs • Most discrimination from older judges • (Around time of Wilson’s report, Judge Walter Hrychuk was investigated by Ont Jud Council for alleged sexist behaviour) • Assumed women judges would like to specialize in family law • If there is a large enough cohort of women judges, they can offset difficulties by having their own social events (Quebec, Ont, BC; what about Alberta?) • Very few minority women judges • Recommendations: fair treatment, NJI courses for women judges & for minority women lawyers/judges

  7. Aboriginal Lawyers (back to Greene book) • Aboriginals: 3.7% of Canadians report at least one aboriginal ancestor; 2.6% identify with an aboriginal group • Lawyers: 0.7 % aboriginal • Paralegals: 1.3% • Experienced labour force: 1.9% • Aboriginal legal professionals earned 40% less • Aboriginal lawyers earned 45% less

  8. Visible minorities & legal profession • Visible minorities: 11% of Canadian pop +15 and 10% of experienced labour force • 10% of paralegals visible minorities • 8% of legal secretaries visible minorities • 4.5% of lawyers are visible minorities • Visible minorities in legal professions are 3 years younger than their counterparts • Visible minorities earn 70% of their counterparts

  9. Immigrants • 21% of Canadians +15 born outside Canada • 11.6% of lawyers are visible minorities • 16 – 17% of paralegals and legal secretaries are immigrants. • Between 1991 & 1996, 24% increase in immigrants; 43% amongst paralegals • Tend to be older than their counterparts • Earn 86% of what their counterparts earn

  10. Court support staff • Court support staff are representative of the demographics of the Canadian population • There are about 14,000 people working in the courts, about 2000 of which are likely court reporters and transcriptionists (many of whom are self-employed) • 2/3 of court support staff are women, including 81% of clerks, 93% of reporters & transcriptionists • Women in each category earned significantly less than male counterparts, partly because they are younger.

  11. Court support staff (2) • 2% of court support staff are aboriginal • Programs to recruit aboriginal court workers • 77% of aboriginal court workers had 2+ years post-secondary education, compared with 74% of their counterparts • Aboriginal court workers are 5 years younger than counterparts, so earn less • Aboriginals are 3% of Canada’s police forces • Visible minorities are 6% of court support staff (better represented than lawyers, still under-represented). Have more post-secondary education. Younger, and earn less

  12. Litigants • Civil courts above small claims court: most are wealthy (Superior courts) • Criminal courts: most are lower socioeconomic status (Inferior courts) • Is it fair to have one system of courts for the rich, and another for the poor? • Legal aid cut by 25% between 1995 & 97 • Ontario 1997: legal aid only if income below $15K for a single person; under $40K for family of 7

  13. Litigants (2) • Nova Scotia study: half of Self Represented Litigants (SRLs) would have hired a lawyer if they had enough money • The other half were younger, well educated, but without much income, and not fully employed • They wanted to represent themselves to prove the worth of their education, and/or because they disliked lawyers • Half of SRLs were in cases involving family matters • SRLs put a tremendous pressure on courts • There are a large number of SRLs who apply to Supreme Court of Canada for Leave to Appeal. Few win leave

  14. How inclusive are our courts? • Is the progress made by women and visible minorities good enough? • Is the legal community more hospitable to the “haves” than the “have nots”? • What are the ethical obligations of the legal community to the Canadian public? • Should courts become more user-friendly to SRLs, or should there be more legal aid and community legal clinics?

  15. R. v. S. (R.D.), [1997] • White police officer arrested a black 15-year-old • Another black had been arrested, and the accused tried to prevent the arrest, and so was arrested for preventing arrest • Accused and police officer only witnesses • Judge (black) determined accused acquitted; had experience with police lying • Crown appealed. Judge issued supplementary reasons why she doubted police evidence • SCC unanimous decision: a judge who has evidenced a “reasonable apprehension of bias” must be disqualified. “reasonable person” test. • Bias: predisposition to particular issues • “The requirement of neutrality does not require judges to discount their life experiences.” • Judges should avoid comment that conclusions based on generalizations or stereotypes. But in some limited circumstances, “comments appropriate.” • Comments about trial judge: “entirely appropriate recognition of the facts in evidence and of the context within which this case arose – a context known to the judge and to any well-informed member of the community.”

  16. R v. Hamilton [2004] • Sentence appeal of Hamilton & Mason, guilty of importing cocaine from Jamaica • Comment on Ont CA Sentence appeals (my past research) • Ont one of only 2 CAs in Canada open to varying sentence decisions a little • Impact of “local judicial culture,” which varies in jurisdictions • Two women guilty of importing cocaine by swallowing containers with cocaine (large amounts). • Trial judge: “conditional sentences were appropriate primarily on his finding that the respondents, because of their race, gender, and poverty, were particularly vulnerable targets to those who sought out individuals to act as cocaine couriers.” (can serve sentence at home with conditions)

  17. R v. Hamilton (cont’d) • Trial: Dr. Doob’s expert opinion evidence to the effect that general deterrence had little or no value in sentencing offenders like the respondents, and on the respondents’ positive antecedents.  • Crown: based on precedent, should receive jail terms of 2-3 years • Appeal: “On a proper application of the relevant principles of sentencing and the authorities of this court, these offences merited substantial prison terms, despite the mitigating effect of the respondents’ personal circumstances.” • Hamilton is a black single mother with three children, ages seven, eight, and two. • First became pregnant in Gr 9. Abused by partner who provided no financial or emotional support, and returned to Jamaica. • Appeal: trial judge’s lenient sentence a result of not filtering out non-legal factors

  18. R. v. Hamilton (cont’d) • “This was a significant appeal for the administration of justice.  The decision of the trial judge raised important issues that required the attention of this court.  Appeals take time.  Lives go on.  Things change.  These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.  The administration of justice would not be served by incarcerating the respondents for a few months at this time.  They have served significant, albeit, inadequate sentences.  To impose now, what would have been a fit sentence at trial, would work an undue hardship on the respondents.  The administration of justice is best served by allowing the respondents to complete their conditional sentences.”

  19. S. Lawrence and T. Williams, "Swallowed Up: Drug Couriers at the Borders of Sentencing.” • Women make up 20% of those charged, 5% of those in fed penetentiaries, and 9% of those in provincial prisons • Women much more likely to be charged with importing than men • Black women over-represented in these charges • Women much less likely (~80%) to commit a crime than men • 1980s: media portrayed black Jamaican women as important drug couriers, but victims of Jamaican men leading the trade • Trial judges in 1980s tended to give more lenient sentences to women couriers, but were often overruled on appeal • Hamilton case: trial judge was open to arguments about the context of the offence, but only superficially so • Appeal: judges very critical of trial judge for accepting paradigm of courier, but did not vary sentence much; waffled like trial judge • Both cases contain an odd mixture of recognition of situation, and deference to the strict letter of the law • My view: Lawrence and Williams don’t like the decisions, but aren’t clear on why. “More research is needed.” Nevertheless, good food for thought. Judges struggle to be fair in cases involving race, and they often don’t have enough background to make a fully informed decision

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