Court Organization and Court Organization and ManagementManagement

January 19, 2012January 19, 2012 Judicial Independence: The Judicial Independence: The Challenge of Race & GenderChallenge of Race & Gender

Ian Greene

Class Organizational MattersClass Organizational Matters Group Presentations (class web page)Group Presentations (class web page) Final essay: see Justice on Target Final essay: see Justice on Target

Statistics (class web page)Statistics (class web page) InternshipsInternships

Students requiring internship for grad Students requiring internship for grad diploma: Ahmed, Ahmadi, K., Ahmadi, N., diploma: Ahmed, Ahmadi, K., Ahmadi, N., Barakat, Cabral, Chendamarai, Harvey, Barakat, Cabral, Chendamarai, Harvey, Kanagasabapathy, Karmali, Khan, Mloka, Kanagasabapathy, Karmali, Khan, Mloka, Motavalli, Segal, Sihra, Stone, Zamir (16)Motavalli, Segal, Sihra, Stone, Zamir (16)

Greene: Ch 3, Greene: Ch 3, The CourtsThe CourtsInclusiveness Inclusiveness (judges covered last week)(judges covered last week)

Should lawyers be representative of the larger Should lawyers be representative of the larger population? population?

What were the barriers to becoming lawyers What were the barriers to becoming lawyers faced by some groups in the past?faced by some groups in the past?

To what extent are lawyers representative of To what extent are lawyers representative of the larger population today?the larger population today? Stats inlcude both lawyers and “notaries” in Quebec Stats inlcude both lawyers and “notaries” in Quebec

& BC. Data also available for paralegals & legal & BC. Data also available for paralegals & legal secretariessecretaries

Nearly all lawyers have attended university, Nearly all lawyers have attended university, compared with 82% of paralegals & 58% of Can compared with 82% of paralegals & 58% of Can labour force who have some post-secondary labour force who have some post-secondary educationeducation

Representativeness of lawyersRepresentativeness of lawyers Average salaries of lawyers 1996: $81, Average salaries of lawyers 1996: $81,

500. 1991: $87,300500. 1991: $87,300 Paralegals: $36K, legal sec’s: $29K both Paralegals: $36K, legal sec’s: $29K both

yearsyears 1996: 31% lawyers were women1996: 31% lawyers were women

79% of paralegals & 99% of leg sec’s women79% of paralegals & 99% of leg sec’s women Women lawyers 6 years younger than menWomen lawyers 6 years younger than men Women in legal profession face barriers to Women in legal profession face barriers to

career advancement: Justice Bertha Wilson, career advancement: Justice Bertha Wilson, who nearly withdrew from law school who nearly withdrew from law school because no other women in her classbecause no other women in her class

Justice Wilson, “Touchstones for change: Equality, Justice Wilson, “Touchstones for change: Equality, diversity and accountability” (1993)diversity and accountability” (1993)

Women in law firms Women in law firms Discrimination ranges from overt sexism, to Discrimination ranges from overt sexism, to

reluctance to accommodate work-life balancereluctance to accommodate work-life balance Why do only 1/2 to 2/3 of law graduates (men Why do only 1/2 to 2/3 of law graduates (men

and women) end up practicing law?and women) end up practicing law? Women lawyers complain of discrimination in Women lawyers complain of discrimination in

court by male judgescourt by male judges Women judges: two levels of Women judges: two levels of

discriminationdiscrimination That which affects women generallyThat which affects women generally Affects a woman judge’s ability to Affects a woman judge’s ability to

discharge her officedischarge her office

Wilson (cont’d)Wilson (cont’d) 132/200 of 132/200 of women judges responded to surveywomen judges responded to survey

43% said they had experienced discrimination by mail chief 43% said they had experienced discrimination by mail chief judges (Provincial Courts) or justices (federally-appointed)judges (Provincial Courts) or justices (federally-appointed)

Much of the discrimination occurred at initial arrivalMuch of the discrimination occurred at initial arrival Feminists not suited for judgshipFeminists not suited for judgship Resentment that appointed merely because they were womenResentment that appointed merely because they were women Would not be scheduled to sit on cases involving sexual assault or Would not be scheduled to sit on cases involving sexual assault or

serious criminal mattersserious criminal matters Initial judgments based on stereotypes not recognized by CJsInitial judgments based on stereotypes not recognized by CJs Most discrimination from older judgesMost discrimination from older judges (Around time of Wilson’s report, Judge Walter Hrychuk was (Around time of Wilson’s report, Judge Walter Hrychuk was

investigated by Ont Jud Council for alleged sexist behaviour)investigated by Ont Jud Council for alleged sexist behaviour) Assumed women judges would like to specialize in family lawAssumed women judges would like to specialize in family law

If there is a large enough cohort of women judges, they can If there is a large enough cohort of women judges, they can offset difficulties by having their own social events (Quebec, offset difficulties by having their own social events (Quebec, Ont, BC; what about Alberta?)Ont, BC; what about Alberta?)

Very few minority women judgesVery few minority women judges Recommendations: fair treatment, NJI courses for women Recommendations: fair treatment, NJI courses for women

judges & for minority women lawyers/judgesjudges & for minority women lawyers/judges

Aboriginal Lawyers (back to Greene book)Aboriginal Lawyers (back to Greene book) Aboriginals: 3.7% of Canadians report at Aboriginals: 3.7% of Canadians report at

least one aboriginal ancestor; 2.6% least one aboriginal ancestor; 2.6% identify with an aboriginal groupidentify with an aboriginal group

Lawyers: 0.7 % aboriginalLawyers: 0.7 % aboriginal Paralegals: 1.3%Paralegals: 1.3% Experienced labour force: 1.9%Experienced labour force: 1.9% Aboriginal legal professionals earned 40% Aboriginal legal professionals earned 40%

lessless Aboriginal lawyers earned 45% lessAboriginal lawyers earned 45% less

Visible minorities & legal professionVisible minorities & legal profession

Visible minorities: 11% of Canadian pop Visible minorities: 11% of Canadian pop +15 and 10% of experienced labour force+15 and 10% of experienced labour force

10% of paralegals visible minorities10% of paralegals visible minorities 8% of legal secretaries visible minorities8% of legal secretaries visible minorities 4.5% of lawyers are visible minorities4.5% of lawyers are visible minorities Visible minorities in legal professions are 3 Visible minorities in legal professions are 3

years younger than their counterpartsyears younger than their counterparts Visible minorities earn 70% of their Visible minorities earn 70% of their

counterpartscounterparts

ImmigrantsImmigrants

21% of Canadians +15 born outside 21% of Canadians +15 born outside CanadaCanada

11.6% of lawyers are visible minorities11.6% of lawyers are visible minorities 16 – 17% of paralegals and legal 16 – 17% of paralegals and legal

secretaries are immigrants.secretaries are immigrants. Between 1991 & 1996, 24% increase in Between 1991 & 1996, 24% increase in

immigrants; 43% amongst paralegalsimmigrants; 43% amongst paralegals Tend to be older than their counterpartsTend to be older than their counterparts Earn 86% of what their counterparts earnEarn 86% of what their counterparts earn

Court support staffCourt support staff Court support staff are representative of the Court support staff are representative of the

demographics of the Canadian populationdemographics of the Canadian population There are about 14,000 people working in the There are about 14,000 people working in the

courts, about 2000 of which are likely court courts, about 2000 of which are likely court reporters and transcriptionists (many of whom reporters and transcriptionists (many of whom are self-employed)are self-employed)

2/3 of court support staff are women, 2/3 of court support staff are women, including 81% of clerks, 93% of reporters & including 81% of clerks, 93% of reporters & transcriptioniststranscriptionists

Women in each category earned significantly Women in each category earned significantly less than male counterparts, partly because less than male counterparts, partly because they are younger.they are younger.

Court support staff (2)Court support staff (2) 2% of court support staff are aboriginal 2% of court support staff are aboriginal

Programs to recruit aboriginal court workersPrograms to recruit aboriginal court workers 77% of aboriginal court workers had 2+ years 77% of aboriginal court workers had 2+ years

post-secondary education, compared with 74% of post-secondary education, compared with 74% of their counterpartstheir counterparts

Aboriginal court workers are 5 years younger Aboriginal court workers are 5 years younger than counterparts, so earn lessthan counterparts, so earn less

Aboriginals are 3% of Canada’s police forcesAboriginals are 3% of Canada’s police forces Visible minorities are 6% of court support staff Visible minorities are 6% of court support staff

(better represented than lawyers, still under-(better represented than lawyers, still under-represented). Have more post-secondary represented). Have more post-secondary education. Younger, and earn lesseducation. Younger, and earn less

LitigantsLitigants Civil courts above small claims court: Civil courts above small claims court:

most are wealthy (Superior courts)most are wealthy (Superior courts) Criminal courts: most are lower Criminal courts: most are lower

socioeconomic status (Inferior courts)socioeconomic status (Inferior courts) Is it fair to have one system of courts for Is it fair to have one system of courts for

the rich, and another for the poor?the rich, and another for the poor? Legal aid cut by 25% between 1995 & 97Legal aid cut by 25% between 1995 & 97 Ontario 1997: legal aid only if income Ontario 1997: legal aid only if income

below $15K for a single person; under below $15K for a single person; under $40K for family of 7$40K for family of 7

Litigants (2)Litigants (2) Nova Scotia study: half of Self Represented Litigants Nova Scotia study: half of Self Represented Litigants

(SRLs) would have hired a lawyer if they had enough (SRLs) would have hired a lawyer if they had enough moneymoney

The other half were younger, well educated, but The other half were younger, well educated, but without much income, and not fully employedwithout much income, and not fully employed

They wanted to represent themselves to prove the They wanted to represent themselves to prove the worth of their education, and/or because they disliked worth of their education, and/or because they disliked lawyerslawyers

Half of SRLs were in cases involving family mattersHalf of SRLs were in cases involving family matters SRLs put a tremendous pressure on courtsSRLs put a tremendous pressure on courts There are a large number of SRLs who apply to There are a large number of SRLs who apply to

Supreme Court of Canada for Leave to Appeal. Few win Supreme Court of Canada for Leave to Appeal. Few win leaveleave

How inclusive are our courts?How inclusive are our courts?

Is the progress made by women and Is the progress made by women and visible minorities good enough?visible minorities good enough?

Is the legal community more hospitable Is the legal community more hospitable to the “haves” than the “have nots”?to the “haves” than the “have nots”?

What are the ethical obligations of the What are the ethical obligations of the legal community to the Canadian public?legal community to the Canadian public?

Should courts become more user-Should courts become more user-friendly to SRLs, or should there be more friendly to SRLs, or should there be more legal aid and community legal clinics?legal aid and community legal clinics?

R. R. vv. S. (R.D.), [1997]. S. (R.D.), [1997] White police officer arrested a black 15-year-oldWhite police officer arrested a black 15-year-old Another black had been arrested, and the accused tried to prevent the Another black had been arrested, and the accused tried to prevent the

arrest, and so was arrested for preventing arrestarrest, and so was arrested for preventing arrest Accused and police officer only witnessesAccused and police officer only witnesses Judge (black) determined accused acquitted; had experience with police Judge (black) determined accused acquitted; had experience with police

lyinglying Crown appealed. Judge issued supplementary reasons why she doubted Crown appealed. Judge issued supplementary reasons why she doubted

police evidencepolice evidence SCC unanimous decision: a judge who has evidenced a “reasonable SCC unanimous decision: a judge who has evidenced a “reasonable

apprehension of bias” must be disqualified. “reasonable person” test.apprehension of bias” must be disqualified. “reasonable person” test. Bias: predisposition to particular issuesBias: predisposition to particular issues ““The requirement of neutrality does not require judges to discount their life The requirement of neutrality does not require judges to discount their life

experiences.”experiences.” Judges should avoid comment that conclusions based on generalizations or Judges should avoid comment that conclusions based on generalizations or

stereotypes. But in some limited circumstances, “comments appropriate.”stereotypes. But in some limited circumstances, “comments appropriate.” Comments about trial judge: “entirely appropriate recognition of the facts Comments about trial judge: “entirely appropriate recognition of the facts

in evidence and of the context within which this case arose – a context 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.”known to the judge and to any well-informed member of the community.”

R v. Hamilton [2004]R v. Hamilton [2004]

Sentence appeal of Hamilton & Mason, guilty of Sentence appeal of Hamilton & Mason, guilty of importing cocaine from Jamaicaimporting cocaine from Jamaica Comment on Ont CA Sentence appeals (my past research)Comment on Ont CA Sentence appeals (my past research)

Ont one of only 2 CAs in Canada open to varying sentence decisions a Ont one of only 2 CAs in Canada open to varying sentence decisions a littlelittle

Impact of “local judicial culture,” which varies in jurisdictionsImpact of “local judicial culture,” which varies in jurisdictions

Two women guilty of importing cocaine by swallowing Two women guilty of importing cocaine by swallowing containers with cocaine (large amounts).containers with cocaine (large amounts).

Trial judge: “conditional sentences were appropriate Trial judge: “conditional sentences were appropriate primarily on his finding that the respondents, because primarily on his finding that the respondents, because of their race, gender, and poverty, were particularly of their race, gender, and poverty, were particularly vulnerable targets to those who sought out individuals vulnerable targets to those who sought out individuals to act as cocaine couriers.” (can serve sentence at to act as cocaine couriers.” (can serve sentence at home with conditions)home with conditions)

R v. Hamilton (cont’d)R v. Hamilton (cont’d) Trial: Dr. Doob’s expert opinion evidence to the effect that general Trial: Dr. Doob’s expert opinion evidence to the effect that general

deterrence had little or no value in sentencing offenders like the deterrence had little or no value in sentencing offenders like the respondents, and on the respondents’ positive antecedents.  respondents, and on the respondents’ positive antecedents. 

Crown: based on precedent, should receive jail terms of 2-3 yearsCrown: based on precedent, should receive jail terms of 2-3 years Appeal: “On a proper application of the relevant principles of Appeal: “On a proper application of the relevant principles of

sentencing and the authorities of this court, these offences merited sentencing and the authorities of this court, these offences merited substantial prison terms, despite the mitigating effect of the substantial prison terms, despite the mitigating effect of the respondents’ personal circumstances.”respondents’ personal circumstances.”

Hamilton is a black single mother with three children, ages seven, Hamilton is a black single mother with three children, ages seven, eight, and two.eight, and two.

First became pregnant in Gr 9. Abused by partner who provided no First became pregnant in Gr 9. Abused by partner who provided no financial or emotional support, and returned to Jamaica.financial or emotional support, and returned to Jamaica.

Appeal: trial judge’s lenient sentence a result of not filtering out Appeal: trial judge’s lenient sentence a result of not filtering out non-legal factorsnon-legal factors

R. v. Hamilton (cont’d)R. v. Hamilton (cont’d) ““This was a significant appeal for the administration of This was a significant appeal for the administration of

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

S. Lawrence and T. Williams, "Swallowed Up: S. Lawrence and T. Williams, "Swallowed Up: Drug Couriers at the Borders of Sentencing.”Drug Couriers at the Borders of Sentencing.”

Women make up 20% of those charged, 5% of those in fed penetentiaries, Women make up 20% of those charged, 5% of those in fed penetentiaries, and 9% of those in provincial prisonsand 9% of those in provincial prisons

Women much more likely to be charged with importing than menWomen much more likely to be charged with importing than men Black women over-represented in these chargesBlack women over-represented in these charges Women much less likely (~80%) to commit a crime than menWomen much less likely (~80%) to commit a crime than men 1980s: media portrayed black Jamaican women as important drug couriers, 1980s: media portrayed black Jamaican women as important drug couriers,

but victims of Jamaican men leading the tradebut victims of Jamaican men leading the trade Trial judges in 1980s tended to give more lenient sentences to women Trial judges in 1980s tended to give more lenient sentences to women

couriers, but were often overruled on appealcouriers, but were often overruled on appeal Hamilton case: trial judge was open to arguments about the context of the Hamilton case: trial judge was open to arguments about the context of the

offence, but only superficially sooffence, but only superficially so Appeal: judges very critical of trial judge for accepting paradigm of courier, Appeal: judges very critical of trial judge for accepting paradigm of courier,

but did not vary sentence much; waffled like trial judgebut did not vary sentence much; waffled like trial judge Both cases contain an odd mixture of recognition of situation, and deference Both cases contain an odd mixture of recognition of situation, and deference

to the strict letter of the lawto the strict letter of the law My view: Lawrence and Williams don’t like the decisions, but aren’t clear on 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. 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 Judges struggle to be fair in cases involving race, and they often don’t have enough background to make a fully informed decisionenough background to make a fully informed decision