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Justice in Social Context

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Justice in Social Context JUSTICE IN SOCIAL CONTEXT Leonel González Postigo Marco Fandiño Castro (Editors) Hon. Justice Sheilah Martin (Prologue) Title Justice in Social Context Editors Leonel González Postigo | Marco Fandiño Castro Authors Leonel González Postigo Marco Fandiño Castro Katherine Swinton Brian W. Lennox Natalie Salat Javier Álvarez M. Christy Tull Daphna Blatman-Kendrai Ori Landau Boaz Munk Christa Christensen Tamara Lewis Cover design Claudia Durán Printing Cipod Registro de Propiedad Intelectual: A-311088 ISBN: 978-956-8491-70-3. © 2019 Centro de Estudios de Justicia de las Américas, CEJA Rodo 1950 Providencia Santiago, Chile Tel.: 56 2 22742933 www.cejamericas.org 2019 Table of contents Presentation by the editors 7 Prologue by the Hon. Justice Sheilah Martin 9 1. Social context and judicial education: A tool for improving the quality and legitimacy of judicial decisions Leonel González Postigo and Marco Fandiño Castro 11 2. Judicial Impartiality and Social Context Education Katherine Swinton 31 3. Social context and judicial education in Canada Brian Lennox and Natalie Salat 47 4. Dissident sexualities and access to justice in Argentine: The role of the public prosecutor’s office and the need to rethink judicial training Javier Álvarez 59 5. Out-of-Classroom Experience: Judicial Education’s Use of Experiential Learning Opportunities M. Christy Tull 73 6. Peer group consultation as a judicial training model Daphna Blatman-Kedrai, Ori Landau and Boaz Munk 91 7. Social context and diversity training in England and Wales. The equal treatment benchbook Christa Christensen and Tamara Lewis 125 Presentation by the editors The process of training justice system operators has moved through various stages at the international level. It was initially described by what Sartre called a ‘nourishing concept of knowledge’ and or Paulo Freire has referred to as a ‘banking concept of education’ In other words, the learning process was conceived of as a “deposit” that educators made to their students without con- ceiving of the latter as subjects with prior experiences and interests. This initial stage was characterized by the domination of memory-based training focused on legal and dogmatic elements. The world of education changed in the 1970s as a result of the “inside out” perspective, which encouraged students to reflect on their experience and to use a range of skills and abilities. This new vision of judicial training can be summarized by the idea of “learning by doing” and the empirical assessments conducted in Canada show that these methodologies have a greater pedagogi- cal impact on the creation of knowledge. This publication is framed by the most recent wave of judicial training, which is training of judicial operators in the social context of justice system users. We have identified several international experiences in which the institutions responsible for judicial training have incorporated methodologies focused on training judicial operators about the social, cultural or racial context of the people who access the judicial system. Specifically, this publication includes experiences that have been developed in Anglo-Saxon systems like those of Canada, the United States, the United Kingdom and Israel and in civil law contexts such as Argentina’s national justice system. We are very grateful to the experts who have contributed with their articles to this project. These new learning spaces share several goals: to reduce the risk of discrimi- nation by judges, increase the quantity and quality of information that judges have available to them when they issue a ruling, to generate greater trust and legitimacy through procedural justice and to increase community involve- ment. We are also pleased that this work coincides with the important foundational milestone of the 25th anniversary of the unanimous decision by the Canadian Judicial Council in 1994 to approve the concept of ‘comprehensive, reliable and exhaustive programs on matters related to social context including aspects of race and gender.’ We hope that this work can serve as an initial step towards creating a judicial system that is much more open and respectful of the social, cultural, ethnic, sexual and religious diversity that exists in our contemporary societies. Leonel González Postigo and Marco Fandiño Castro CHAPTER 1: SOCIAL CONTEXT AND JUDICIAL EDUCATION Prologue by the Hon. Justice Sheilah Martin As this collection of essays demonstrates, the need for judges around the world to understand and appreciate the social contexts within which they work is stronger than ever before. Most people readily accept the pressing need for judges to engage in continuing professional educational programs. Laws change, precedents evolve, knowledge increases and judicial decisions must be based on current norms. As judges stri- ve to deliver justice according to law and equal justice for all, an important part of their professional formation is to understand the social contexts in which people live and in which judicial decisions are rendered and received. The nature of the judicial role is such that judges have special obligations in this area. Judges occupy a unique position of power and responsibility over their fellow citizens. They must decide questions such as with whom a child should live, how long an offender should be incarcerated, and what monetary value should be placed on an injury caused by another. While it is widely ac- knowledged that judicial independence is a cornerstone of the rule of law, an independent judiciary is not the same as an isolated one. As Catherine Fraser, Chief Justice of Alberta, has observed, “without knowledge about the real pro- blems of real people and the world around us, it is difficult to understand how one can judge fairly.”1 Moreover, judges have the ultimate responsibility to interpret a nation’s consti- tution, a society’s most basic expression of its shared values. In many countries, as in Canada, equality rights of various types receive constitutional protection to combat any longstanding patterns of discrimination and injustice which pervade many societies and legal systems. Without credible and comprehen- sive instruction, not all judges will understand what discrimination looks like and what equality requires. Judicial education is thus an important bridge be- tween a judge’s own education and experience, and the wisdom and life expe- riences of others. In Canada, today, it is widely accepted that judges should receive social context education to eliminate unconscious bias and to achieve the heightened impar- tiality required to administer justice for all in a diverse society. Since 2003, the National Judicial Institute, which educates federally appointed judges in Canada, has integrated substantive law, skills development and social context awareness into its judicial education programming. Social context education is a broad topic that is inextricably tied to judicial competence. It includes education on the nature of diversity and the impacts of disadvantage and on the particular social, cultural and linguistic issues that 1 National Judicial Institute, Year in Review 2016-2018, online: https://www.nji-inm.ca/ index.cfm/publications/public-resources/nji-in-review-2016-2018/ at b. 9 JUSTICE AND SOCIAL CONTEXT shape the people who appear before them. It is intended to help judges explore their own assumptions, biases and views of the world with a view to reflecting on how these may interact with judicial processes. Much of this education is built upon relevant research and community experience. It is designed to enhance judicial reasoning and provide jurisprudential and analytical tools to enable judges to examine the underlying basis of legal rules and concepts to en- sure that these rules and concepts correspond with social realities and conform to any constitutional or legal guarantees of equality.2 Just as important as the ‘what’ of judicial education is the ‘how.’ Judges have unique learning needs, and effective training must be insightful, interactive, and immersive. It should specifically address and respect the role that judges are asked to play in society, and be designed with a skills-based approach so that it can be readily applied. Design and delivery of judicial education is often best led by judges themselves, not only to ensure its usefulness but also to ensure its integrity and independence.3 That does not mean, however, that judges cannot benefit enormously from the insight and experience of academics and the people and communities involved. Although some may question the need for social context education, experience has shown that it enhances, rather than threatens, judicial independence. As my colleague, Justice Rosalie Abella, wrote in the Yukon Francophone School Board case, Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and [an] empty one.4 Social context education helps judges expand their horizons in order to better understand and interpret the societies they work within. Of course, different people start in different places, just as different judicial systems exist in diffe- rent legal and social cultures. This collection of papers, drawn from different countries at different times, is a worthwhile project that helps start a conversa- tion about this vitally important topic. Hon. Justice Sheilah Martin Justice of the Supreme Court of Canada 2 National Judicial Institute, The Social Context Education Project, 2004, online: https:// www.law.columbia.edu/sites/default/files/microsites/clinics/sexuality-gender/files/SG13.pdf at 1. 3 See, for example, the National Judicial Institute’s “20 Principles of Judicial Education” in National Judicial Institute, Year in Review 2016-2018, online: https://www.nji-inm.ca/index. cfm/publications/public-resources/nji-in-review-2016-2018/ at 10-11. 4 Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), [2015] 2 SCR 282, 2015 SCC 25 (CanLII) at para.
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