Restoring Justice - Nova Scotia Barristers` Society

the
SOCIETY
RECORD
VOLUME 33 | NO.2 | fall 2015
NOVA SCOTIA
BARRISTERS’ SOCIETY
w ww. n s bs .o rg
Restoring Justice
A spotlight on restorative approaches in Nova Scotia
Fall 2015SCOTIA
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Contents
VOLUME 33 | NO 2 | fall 2015
5The President’s View
6
Briefs
11Society News
14
PRIDE: Political insights on human rights – Michael Lightstone
16 Indigenous land issues inspire winning essay – Kevin Hong
18
Introducing restorative justice in Nova Scotia – Jennifer J. Llewellyn
22NSLA: Restoring justice through innovation – Karen Hudson QC
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Administrator,
24
Updates on restorative justice groups in Nova Scotia
27
Reflections on Dalhousie’s Facebook incident 2014-15 – Karen Crombie
29 Nova Scotia’s Restorative Approach in Schools Project – Richard Derible
31
A restorative adjudication process shows promise – Lisa Teryl
33
Family Group Conference: Mi’kmaq perspective – Kristen Basque
34
Journey to light: Restorative inquiry an innovative approach to examine past abuses at NS Home
for Colored Children – Michael Lightstone
37
Mi’kmaw Legal Support Network 38
Law firm diversity dialogue – Marla Cranston
39
An enduring mystery: Why Nova Scotia’s first woman lawyer quit the profession – Barry Cahill
40
Volunteer Profile: 7th Step Society of Nova Scotia – Marla Cranston
42 LIANS – Tips from the Risk & Practice Management Program
43 #TalkJustice includes community voices in A2J solutions – Jane Willwerth
45
SUMMATION: Restorative justice offers a different understanding of what justice can mean in
Nova Scotia – Danny Graham QC
i n s id e
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NOVA SCOTIA
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For ongoing Society news, follow us online (nsbs.org) :
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Join the #TalkJustice conversation at talkjustice.tumblr.com or talkjustice.ca.
Fall 2015
3
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Access-to-justice
priorities at the root
of regulatory overhaul
A
t the outset of
this Council year,
I decided that my
year as President would be guided by three main priorities: 1)
improving access to legal services in Nova Scotia; 2) ensuring
the Society plays a supportive role for lawyers in rural areas; and
3) keeping lawyer mental health at the forefront of our work. I
am now one third of the way through my year as President (time
flies) and I am happy to report progress in each of these areas.
This progress is not the result of any individual heroics on my
part; instead, it is the result of the Society’s ongoing work in
transforming regulation.
An overhaul of the way in which we regulate the legal profession
in Nova Scotia has been at the top of our “to do” list for the
last two years. For some time, we referred to this work as
“entity regulation” – a label still used by many jurisdictions both
nationally and internationally. In Nova Scotia, we now refer to the
new model as “legal services regulation” both because “entity
regulation” sounds like something from a bad sci-fi movie and
because “legal services regulation” more fully describes the
scope of the work. The new model of regulation provides an
ideal framework for focusing on my three main priorities.
Access to legal services
We hope the new approach will encourage – instead of stifling –
innovation and creativity in legal service delivery by lawyers and
law firms. Backing away from prescriptive rules and unnecessary
“red tape” is intended to give lawyers and law firms more
freedom with respect to how they choose to “set up shop” and
manage themselves. Abolishing the current prohibition against
fee-sharing, for example, could further enhance opportunities
for innovation. Markets that previously held little attraction for
lawyers may become viable.
Council is also considering policies that would let us loosen the
lawyer monopoly somewhat by permitting specified individuals
or groups of non-lawyers to deliver legal services in areas where
there is an access-to-justice need and where there is no risk to
the public. For example, why not permit community centre staff
who have experience with Canada Pension Plan application
forms to assist those in need of this service? What about retired
lawyers who miss the action and would like to assist with peace
bond applications? We are questioning whether the rules that
prevent these forms of service delivery are really in the public
interest.
the
president’s
view
Rural practice
Sole practitioners and small firms in rural areas are a cornerstone
of access to justice. Changes in the way we regulate the profession
must not place additional burdens on these practitioners. Our
“Solo and Small and Small Firm Working Group,” under the
able leadership of Second Vice-President Julia Cornish QC, has
done much of the heavy lifting for our transforming regulation
work. The working group has produced a self-assessment tool
that will assist lawyers in determining if they are meeting the
overall principles and objectives that guide the new approach
to regulation. As we move forward, we are committed to a
comprehensive consultation process that will ensure we have the
benefit of input from lawyers around the province.
Lawyer mental health
The mental health of lawyers is an access-to-justice issue
because we can’t meet legal needs in a timely, thorough and
compassionate manner if we are overworked, burned out and
generally unwell. This is a particular hazard for lawyers in those
areas of practice with the most intimate connection to the
access-to-justice crisis such as family and criminal law; high
volume and emotional intensity are hallmarks of such practices.
Changing the way we regulate should be part of the solution on
this front also. If lawyers are able to spend less time ensuring
compliance with detailed rules that have little-to-no practical
application to their particular worlds, time will be freed up to focus
on issues that matter to them and their clients. The Society will
play a supportive role that is guided by the desire to help lawyers
avoid problems before they occur. Significantly, jurisdictions that
have moved to this form of regulation report a higher level of job
satisfaction, fewer complaints and better profit margins.
In sum, it’s a very exciting time for the Nova Scotia Barristers’
Society and the legal profession in this province. Jurisdictions
across the country and around the world are closely following
our work. I hope I have helped to highlight the ways in which
our work in transforming regulation addresses some pressing
issues in very concrete terms. We need your help with this work.
Stay tuned – you’ll be hearing from us!
Jill Perry
President
Fall 2015
5
BRIEFS
2015 RECOGNITION RECEPTION
Ron J. MacDonald QC: 2015 Distinguished Service Award The Society presented its 2015 Distinguished
Service Award to Ron J. MacDonald QC, pictured here
with his family. Director of the province’s Serious
Incident Response Team (SiRT), he was formerly a
Crown attorney and then criminal law policy advisor
for the Department of Justice. Mr. MacDonald
served as Society President (2005-2006) and also
as President of the Federation of Law Societies of
Canada (2010-2011).
The award citation calls him “a local and national
champion for an independent legal profession
(who) has made exceptional contributions to that
profession, as a visionary in advancing public interest
regulation both in Canada and internationally; to the
public as an advocate for substantive and procedural
criminal justice reform; and to his community as a
coach and mentor for young athletes. He remains
committed to giving to the profession and his
larger world in ways that exemplify his continuing
extraordinary contributions.”
Recognition of long-term service: 60 years Also at the September 18 event at the Delta
Halifax, President Jill Perry presented Gerald Regan
QC P.C. with his 60-year practising certificate. A
member of the Nova Scotia Bar since 1954, the
former Premier of Nova Scotia also served as
a federal MP & cabinet minister in Pierre Elliott
Trudeau’s government.
Earlier in his career, Mr. Regan was one of the
region’s best known labour lawyers and resumed
his legal practice in 1990 after leaving politics.
He continues to consult with McInnes Cooper on
corporate-government relations, as well as energy
sector and mining files, and has remained a fixture in
the region’s business community.
The Recognition Reception is an annual opportunity
for the Society to honour lawyers and law students
for contributions that demonstrate the profession’s
commitment to excellence and public service.
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BRIEFS
2015 CALL TO THE BAR
The Society held its
annual Bar Admission
Ceremony on June 5 at
Pier 21, with the Hon.
Justice Kevin Coady of
Nova Scotia Supreme
Court presiding.
Fifty-two new lawyers
joined the profession that
day, with the majority
remaining in Nova Scotia
to establish their legal
practices.
RACIAL EQUITY COMMITTEE RECEPTION The day before the ceremony,
the Society’s Racial Equity
Committee hosted its annual
reception to honour new calls
and articled clerks from racialized
and Aboriginal communities. This
year’s event took place at The
Auction House in Halifax, where
the Committee also presented
the seventh annual Race and the
Law Essay Prize (see page 16 for
details).
New lawyers from left to right:
Shanisha Grant, Kelsey Jones,
Godfred Chongatera and Angelina
Amaral.
Fall 2015
7
BRIEFS
New appointments for Nova Scotia’s Judiciary
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1. The Honourable Judge Timothy Daley served as the
Society’s President in 2012-2013 and had a lengthy legal career
as a sole practitioner of the Goodman MacDonald Law Group
in New Glasgow. He was sworn in May 8 by the Honourable
Pamela S. Williams, Chief Judge of the Provincial and Family
Courts, and sits primarily in Pictou.
2. The Hon. Justice R. Lester Jesudason was appointed to
the Nova Scotia Supreme Court Family Division, sitting mainly
in Halifax. Joining him at his July 6 robing ceremony were (left to
right) Mrs. Uma Verma, his wife’s grandmother; wife Moneesha
Sinha, a lawyer with Blois Nickerson & Bryson LLP; their
daughter Raina; and Dr. Gita Sinha, his mother-in-law.
3. The Hon. Judge Elizabeth A. Buckle, a former federal
Crown prosecutor, was in private practice with MacKinnon
Buckle Stevenson prior to her appointment to the Provincial and
Family Courts of Nova Scotia. She sits mainly in Amherst and
is here at her May 22 robing ceremony with the Hon. Michael
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MacDonald, Chief Justice of Nova Scotia.
4. The Hon. Justice Robert M. Gregan, formerly Managing
Lawyer with Nova Scotia Legal Aid in Amherst, now presides
in Sydney at the Nova Scotia Supreme Court Family Division.
Robing him at his September 4 ceremony were the Hon. Joseph
P. Kennedy (at left), Chief Justice of the Supreme Court; and the
Hon. Lawrence I. O’Neil (at right), Associate Chief Justice of the
Supreme Court Family Division.
Other recent appointments:
• The Hon. Richard F. Southcott was appointed as a
judge of the Federal Court in Ottawa on May 5. He had
been regional managing partner for Stewart McKelvey and
prior to joining the Bench, was Vice President and General
Counsel at Irving Shipbuilding Inc. in Halifax.
• The Hon. Henry A. Visser joined the Tax Court of Canada
on June 19. He was formerly a partner with McInnes Cooper
in Halifax.
Photos provided courtesy of the Executive Office of the Nova Scotia Judiciary
1
BRIEFS
NOVA SCOTIA’S NEW MINISTER OF JUSTICE The Honourable Diana C. Whalen
was sworn in as Minister of Justice and
Attorney General on July 24 at Province
House. In this photo from the ceremony
in the Red Chamber, the Honourable
J.J. Grant, Lieutenant Governor of Nova
Scotia, entrusts her with the Great Seal
of the Province of Nova Scotia.
Also Deputy Premier, Ms. Whalen is the
second woman to ever hold the position
of Justice Minister for Nova Scotia. The
first was her colleague, the Hon. Lena
Metlege Diab, who remains Minister of
Immigration. Formerly a management
consultant and HRM Councillor, Ms.
Whalen has been an elected member
of the Nova Scotia House of Assembly
since 2003.
LIANS MENTORSHIP RECEPTION
The Lawyers’ Insurance Association
of Nova Scotia celebrated its Mentorship
Program with a fifth annual reception in
Halifax on May 1. Guest speaker for this
year’s event was the Honourable Chief
Justice Michael MacDonald, Chief Justice of
Nova Scotia.
LIANS is currently seeking volunteers with
at least nine years of experience in legal
practice to serve as mentors for the program,
specifically in the areas of family, corporate/
commercial and criminal law. If you’re
interested in participating, find out more at
lians.ca/rpm/mentorship_program.
Fall 2015
9
BRIEFS
2015 NSBS PRESIDENTS’ LEADERSHIP AWARD AND INTERNSHIP
Kathleen Tanner earned the NSBS Presidents’
Leadership Summer Internship, a modest honorarium toward
a volunteer project following first-year law studies. During her
summer as an intern with Bangladesh Legal Aid Services and
Trust (BLAST), she assisted senior lawyers to prepare arguments
in a successful constitutional challenge at the Supreme Court
of Bangladesh, in a case that invalidated the death penalty for
minors. She also wrote memoranda for public interest litigation
cases and conducted research relating to Bangladeshi migrant
workers.
Photo provided by Schulich School of Law at Dalhousie University
Rohan Rajpal helps to create smoother transitions –
and more inclusive environments – for international students
and other newcomers to Nova Scotia. He arrived in Canada
almost a decade ago to pursue a business administration
degree. In May, he graduated from the Schulich School of Law
at Dalhousie University, receiving the 2015 NSBS Presidents’
Leadership Award for his leadership qualities and volunteer
efforts while at law school. He proposed an international student
scholarship program, and also pitched the idea of a law school
Diversity Committee. Now articling at McInnes Cooper, he has
helped the firm organize public seminars for newcomers.
From left: Past President Tilly Pillay QC, Rohan Rajpal,
Catherine Walker QC and former Dean Kim Brooks QC
“I learned so much, not just about the law, but about lawyers who practise service to their community as part of their everyday
lives,” says Tanner.
PITCHING IN WITH UGANDA PRO BONO PROJECT
Emma Halpern, the Society’s Equity &
Access Officer, participated in a three-day
workshop in Kampala, Uganda in September with
the International Initiatives of the Canadian Bar
Association (CBA). A partnership effort among the
CBA and the Law Societies of Tanzania, Uganda
and Kenya, the workshop was an exchange of
ideas and experience between pro bono programs
in Canada and East Africa.
The event also offered an opportunity to share
service delivery models and provide suggestions
regarding recruiting and managing pro bono
lawyers. The Society’s participation in this
initiative is a continuation of the relationship we
have built with the law societies in East Africa
following the work of Executive Director Darrel
Pink in that region.
(Left to right): Mercy Kessy and Maria Matui, Tanganyika Law Society (Tls); Berna Bakidde, Legal Aid Service Providers
Network (LASPNET), Emma Halpern, NSBS Equity & Access Officer, Stella Nyandria, Ministry of Justice Law Council
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Photos by Mike Dembeck/NSBS
society news
Council’s Officers and Public Representatives for 2015-2016 (left to right): Second Vice-President Julia Cornish QC, President Jill
Perry, First Vice-President R. Daren Baxter QC, Dr. Manoj Vohra, Natalie Borden and Mike Baker. Find out more and read their
bios at nsbs.org/current-council.
Council updates
Society leadership for 2015-2016
The Society welcomed its new leadership for the 2014-2015 Council
year during the 2015 Annual Meeting, held June 13 at Cape Breton
University. President Jill Perry is Managing Lawyer (Family) with
Nova Scotia Legal Aid in Sydney. First Vice-President R. Daren
Baxter QC, TEP is a Partner with McInnes Cooper’s Halifax office.
Second Vice-President Julia Cornish QC is a founding Partner at
Sealy Cornish Coulthard in Dartmouth.
This was a rather active election year – the Society held three
District elections in March, an At Large election in April, plus two
byelections in June and September to replace Council members who
were appointed to the Nova Scotia Supreme Court (the Hon. Justice
R. Lester Jesudason and the Hon. Justice Robert Gregan).
Council for 2015-2017 includes 21 members: the three Officers,
10 members elected and acclaimed in the judicial districts, three
At Large members elected from the entire province, three Public
Representatives, the representative of the Attorney General and the
Dean of the Schulich School of Law at Dalhousie University. There
are 13 new members in the group, while eight previous Council
members returned for another term.
New Public Representatives
The Society welcomed two new Public Representatives to Council in
June: Natalie Borden of Dartmouth and Dr. Manoj Vohra of Truro.
Public representatives have full voting rights, sit on committees and
help bring the public perspective to governance of the legal profession
in Nova Scotia.
A pharmacist and administrator, Ms. Borden has extensive
management and leadership experience with the Department of
Health and Wellness, where she is currently Program Director,
Drug Information System (DIS). Dr. Vohra is a medical doctor
with more than 25 years of experience in patient care and hospital
administration, most recently as the Vice President of Medicine and
Chief of Staff at the former Colchester East Hants Health Authority.
They join Mike Baker of Halifax, who has served since June of 2013.
Read more about the Public Representatives and other members of
Council in their biographies, online at nsbs.org/current-council. For
Council updates through the year, see InForum and nsbs.org/councilmaterials. The nomination process begins shortly for Second VicePresident for 2016-2017 – stay tuned!
Fall 2015
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society news
Transforming Regulation: latest news
The Society’s Transforming Regulation initiative continues at a rapid
pace. Having developed a set of regulatory objectives prescribing that
regulation will be ‘proactive, principled and proportionate,’ Council
turned its attention to entity regulation, the framework that will be
the basis for the Society’s new approach to legal regulation. In developing a model for entity regulation, Council approved key
policies that will shape what the new model will look like. Each legal
entity in Nova Scotia will have a designated lawyer who will liaise
with ‎the Society; they will need to have Management Systems for
Ethical Legal Practice (MSELP); and regulation will be tailored to the
nature of the practice. Now Council is focusing on the Society’s role and responsibilities
regarding all legal services delivery. In November, Council will
complete its policy formulation in this area. Among the issues
under consideration are allowing regulated legal entities to deliver
both legal and non-legal services, so long as the Society’s ethical
requirements apply to all work done.
There is also consideration of the reality that most legal services
are not delivered by lawyers, and an effective regulatory regime
can encourage expansion of legal services delivery by both lawyers
and others. For lawyers, the goal is to create an environment where
innovation will take root; for others, it is about encouraging low-risk
services that do not cause harm to the public. These policies will be distributed to the profession shortly; once
approved, they will shape the rest of the work on this project. Over
the next several months, the Society will also be actively consulting
on the means by which legal entities will assess their own compliance
with the MSELP elements. A self-assessment ‎tool has been recently
developed. The consultation is designed to ask lawyers and firms to
review the tool, to assess how they would most effectively use it and
the resources it provides. Lawyers’ input will be sought and evaluated through sessions around
the province and a survey that will be circulated via InForum.
To receive ongoing news about the movement toward a new model
of regulation, sign up for the Society’s new email updates. Find out
more at nsbs.org/legal-services-regulation-update, and email
[email protected] to subscribe to the bimonthly dispatches.
Rebrand: Equity & Access Office
The Society has renamed its Equity Office: it is now the Equity &
Access Office. The name change better reflects the office’s breadth of
activities.
To prepare for the upcoming legal services regulation, the Equity &
Access Office is completing a series of information projects that show
how Council’s strategic priority to enhance access to legal services and
the justice system is reflected in the Society’s work:
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Equity & access section of nsbs.org
The new “Equity & access” section of the website describes the
mandate, history and activities of the Equity & Access Office.
Formerly the “Improving justice” section, it houses major reports
and studies; provides equity and access resources for lawyers and law
students; and identifies opportunities for the legal community to get
involved in mentorships and access to justice activities.
Developing an Equity Strategy in Your Workplace: A resource
portal
In collaboration with Society staff in Library & Information Services,
the Equity & Access Office is preparing to launch a resource portal
for lawyers and law firms seeking guidance on issues of employment
equity and cultural competence. The portal gathers valuable online
resources, training and information materials created by the Equity
& Access Office, and relevant items from the Barristers’ Library.
Following the implementation of the Society’s new legal services
regulation framework, this portal will provide tools and advice for
legal entities looking to meet their obligations under Regulatory
Objective #5 (“promote diversity, inclusion, substantive equality and
freedom from discrimination in the delivery of legal services and the
justice system”).
Cultural competence video series
The Equity & Access Office has received increasing demand for
cultural competence instruction, particularly from lawyers who live
beyond HRM. These short videos will cover a wide range of cultural
competence topics, both general (“Why Cultural Competency?”) and
specific (“Equalizing the Playing Field for Persons with Disabilities”).
The resource portal and video series will launch in mid-November.
Keep an eye on InForum and nsbs.org/equity-access for further details.
Improvements ahead for NSBS CPD Requirement
The mandatory CPD Requirement for practising lawyers in Nova
Scotia is evolving into a more effective regulatory tool for ensuring
ongoing professional development.
Lawyers will still be encouraged to maintain a minimum baseline
of 12 hours of CPD each year. But rather than reporting on their
educational activities after the fact, they will instead be expected to
prepare and keep a written plan for their continuing professional
development on an annual basis. The Society will not require lawyers
to submit their annual CPD plans, except in cases where requested.
Review process
In July 2014, Council requested a thorough review of the NSBS
CPD Requirement through the lens of the Society’s strategic priority
to transform regulation in the public interest. Council approved the
review’s recommendations in principle this past May. On November
20, Council will consider proposed amendments to section 8.3 of
the Regulations, which – if approved – will clarify the new approach
and make it official for the current 2015-2016 reporting year.
society news
The details are nearing completion and here’s how the revamped
requirement is likely to work:
• Basic CPD information will be provided to the Society, such as
whether lawyers have a CPD plan, if they met their goals from
the previous year, and if they had any trouble finding relevant
education.
• Lawyers and firms will be able to use any CPD plan format that
suits their needs, but the Society will provide templates and selfassessment tools to assist lawyers in identifying their education
goals and needs.
• As the Society moves toward its new entity regulation framework,
the designated lawyer for each firm/legal workplace will
report that the firm/workplace has plans in place to maintain
competence and is meeting their set goals.
It’s a much more purposive approach, which will be unique to each
individual and their own area of legal practice. It’s also in keeping
with the Society’s new ‘Triple P’ risk-based approach to regulation:
proactive, principled and proportionate.
Creating an annual CPD plan
For ideas on how to create a professional development plan and
what to include, visit the Society’s website to find CPD resources in
the Professional development area: nsbs.org/for_lawyers/professional_
development. We will enhance this section shortly with more tools,
resources and details about the revamped NSBS CPD Requirement.
Also a reminder that the website’s Events calendar and Upcoming
events page are updated daily with a wide variety of CPD opportunities
here in Nova Scotia and elsewhere, including online webinars.
If you have any questions, please email us at [email protected] or leave a
message on the CPD line at (902) 422 1491 ext 371.
Halifax hosts national Discipline Administrators’ Conference
For the first time since 2001, the Nova Scotia Barristers’ Society hosted
the annual Discipline Administrators’ Conference (DAC), from
October 21-23. More than 65 delegates were registered, representing
all 13 provincial and territorial law societies, the Chambre des
notaires du Québec and the Federation of Law Societies of Canada.
A key focus of the conference is to educate and provide support as
we strive for excellence in regulating the legal profession in the public
interest. Over the last several years, the law societies, through the
Federation, have developed the National Discipline Standards, now
adopted across the country. These standards complement the national
Model Code of Professional Conduct, as a means to ensure the rules of
ethics are being applied in a similar manner and with similar outcomes
no matter where a lawyer may practise in Canada. Areas for improvement
and for national cooperation are always topics of discussion at the DAC.
The DAC provides a unique opportunity for those who work
in the field of conduct regulation to network with colleagues and
exchange ideas about current trends and issues of national interest.
Many regular attendees have worked in this area of professional
regulation for years, and their experience and insight about ongoing
challenges are invaluable to their less experienced counterparts.
Those in attendance also bring diverse background experience to the
table, with work in law enforcement, securities regulation, Crown
prosecution work and other private and public legal practice. Many
of the trends we experience in Nova Scotia are shared across the
country. Hearing decisions and results of appeals of those decisions
across the country can directly impact the thresholds, standards and
processes in all jurisdictions.
This year’s agenda included:
• Law Firms and Legal Entities – Regulating toward Compliance
and Ethical Decision-Making;
• Enhancing Lawyer Competence: Charter and Constitutional
Challenges to Law Society Compliance Regulation;
• Identifying and Managing Risk at Early Complaint Stages;
• Taking a Principled Approach to Settlement Negotiations; and
• Restorative Justice Concepts and Principles – Creating Options
and Changing Behaviours through the Discipline Process.
We’re hopeful that all who attended enjoyed the opportunity to learn
and make new connections.
New Director of Finance & Administration The Nova Scotia Barristers’ Society
welcomed a new Director of Finance
& Administration on April 27: Sean
Walker, CPA, CGA, CIA.
As a member of the Society’s senior
management team, he leads the annual
financial audit process, enterprise
risk management program, outcomes
measurement process, human resources
(personnel), and ensures that effective
budgetary and compliance procedures
and controls are in place.
He also helms the Finance & Administration department, which
includes the accounting/finance, information technology, member
database management, reception and communications/web
functions.
Sean joins the Society from the IWK Health Centre where he had
worked for the past decade, most recently as Chief Financial Officer
and Director of Finance and Corporate Services. He received his
Certified Internal Auditor (CIA) designation in 2005, Certified
General Accountant (CGA) designation in 2003, and Bachelor of
Commerce degree at Saint Mary’s University in 1997. He’s a member
of the Canadian and Nova Scotia Association of Certified General
Accountants, and the International and Maritime Chapters of the
Institute of Internal Auditors.
Sean can be reached at 902 422 1491 and [email protected].
Fall 2015
13
PRIDE: Political insights
on human rights
H
uman rights champion Craig Scott has worn several
hats during his working life in law and politics, and his
robust résumé reads like a roadmap to advocacy and deep
involvement in social justice.
The former law professor and human rights lawyer, a Rhodes Scholar
during his student days, had most recently been serving as a Torontoarea MP until the federal election’s Liberal sweep. Among other
things, he has worked on law-reform matters with former colleagues
in the New Democratic Party’s LGBTQ caucus.
Originally from Windsor, Hants County, Scott earned a law degree at
Dalhousie University. He was in Halifax on July 23 as guest speaker
for the 13th annual Pride Reception, co-hosted by the Nova Scotia
Barristers’ Society and the SOGI (Sexual Orientation and Gender
Identity) Section of CBA-NS.
The 53-year-old Scott has been a strong supporter of gay rights,
native rights, anti-poverty issues and environmental protection. He
left academia for politics after winning a 2012 byelection in the
constituency of Toronto-Danforth, following famous footsteps – the
14
The Society Record
riding’s previous MP was the late Jack Layton, former federal NDP
leader. (Its newly elected MP is Liberal Julie Dabrusin.)
In his remarks in Halifax, Scott
Michael Lightstone
reviewed LGBTQ-related initiatives
Freelancer
federal New Democrats have been
working on in Ottawa. As the only
openly gay member of Parliament from Ontario at the time – there
are more than 100 MPs from that province – “I have a special interest
in justice in relation to ... the historical discrimination against the
LGBTQ community in our country,” he said.
Scott has been very active internationally, too, including getting
involved in the development of crucial elements of South Africa’s
post-apartheid constitution, and working on human rights issues in
Iraq, Sri Lanka and Honduras.
Asked about his own experience as a gay man in Canada, Scott said
it’s been a lot less challenging than that of others, adding he hasn’t
been seriously impacted by intolerance.
“I’d say you’re looking at a pretty privileged gay man,” he
acknowledged in an interview. “I was also a late bloomer, in terms
of coming to terms with my own sexual identity. So, I’d be the last
person to be able to say that I have experienced serious discrimination
individually.”
The annual Pride Reception is an opportunity to celebrate diversity
within the province’s legal profession and to show support for LGBT
lawyers throughout Nova Scotia. Dozens of people attended this
year’s event at the Halifax Seaport Farmers’ Market, mingling in a
cozy second-level site decorated with balloons and rainbow kites.
However, Scott has also said that subtle and “not-so-subtle
discriminatory policies and practices” remain in place in Canada,
even though times have changed. He had tabled a motion in the
House of Commons calling for an investigation into decades of the
Armed Forces’ treatment of gay and lesbian personnel who were
forced by higher-ups to leave the Canadian military. Scott and his
NDP co-workers urged the government to formally apologize to
those affected.
It’s a relaxed, after-work get-together that runs during the Halifax
Pride festival and has attracted a wide range of guests, such as Michael
Battista of EGALE Canada; Pooja Gehi of New York’s Sylvia Rivera
Law Project; Kenneth J. Upton, Jr. of Lambda Legal in Texas; and
the Hon. Justice David Corbett of the Brampton Superior Court
of Justice. Last year, Ontario psychotherapist and educator Hershel
Russell spoke about transgender rights and inclusion of gender
identity in the Canadian Human Rights Act.
They want the records of military members who were pushed out to
be corrected, in order to reflect that they served Canada honourably.
According to the NDP, the military’s “purge campaign” ended in 1992
when it was forced to eliminate its discriminatory policy following a
Supreme Court of Canada ruling.
NSBS President Jill Perry said the reception is “truly a great event,”
adding the Society does much work in the area of equity and access,
including LGBTQ matters. “I really think that this is the best party
that the Bar Society participates in throwing,” she told the gathering.
“It’s past time for these records to be expunged,” Scott said, “to
ensure that never again will these individuals need to fear that their
unwarranted criminal record cost them a job, barred them from
travelling abroad or otherwise caused them shame.”
He also emphasized that Canada’s transgender community is still
facing constant discrimination: “Trans people have serious difficulties
in areas such as accessing housing, health care, employment (and)
protection under the law, generally.”
David Cameron, President of the Nova Scotia branch of the Canadian
Bar Association, issued a friendly challenge: he said the popular Pride
parade, which attracts thousands of participants and spectators every
year, should include members of the Bar.
“It is time for those of us who are lawyers in Nova Scotia to pull
together a group to walk in the Pride parade next year,” Cameron
said, adding such a move would “show our support by, as they say,
walking the talk.”
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Fall 2015
15
Indigenous land issues
inspire winning essay
R
obin Vernest came to law school knowing first-hand what
struggles Indigenous peoples faced. A Métis woman from
Antigonish, she had an established career working with
Indigenous peoples prior to attending the Schulich School of Law
at Dalhousie University.
She held several management roles building capacity and community
growth in the areas of governance and economic development. It
was during this time that she recognized the importance of land to
the well-being of Indigenous people – socially, spiritually, culturally
and economically. The historical deprivation of an adequate land
base has, in her view, limited their access to traditional resources and
strikes at their sovereignty – which is synonymous with land issues for
Indigenous peoples around the world.
Vernest’s paper on the subject, “Land: Inherent to Indigenous
Sovereignty – The Crown must honour their solemn promises,”
earned her the Nova Scotia Barristers’ Society 2015 Race and the
Law Essay Prize. Now in its eighth year, the prize was created to
recognize and encourage outstanding scholarship by law students in
Nova Scotia on issues of race and law. The prize is presented by the
Racial Equity Committee with sponsorship from Stewart McKelvey.
16
The Society Record
The paper argues that Indigenous sovereignty cannot be asserted
without first establishing
an adequate land base. The
Kevin Hong
deprivation of land has
Student, Schulich School of Law
resulted in Indigenous people
being unable to improve their personal or communal situation.
Vernest guides readers through an examination of Canadian laws and
policies that have resulted in a historical tradition of “colonial land
theft and regulation.” She then turns her eye to a line of Supreme
Court of Canada cases and the subsequent reactions by Parliament
to explore the role the courts have played in helping Indigenous
peoples achieve their rights. The impact of this issue extends to nonIndigenous Canadians as well, she notes.
“Indigenous people have traditionally been the caretakers of the land
... and their principles of environmental protection and conservation
are vital to our collective future.”
The Crown’s duty to consult and possibly accommodate where
Aboriginal rights may be adversely affected allows Indigenous
people to continue this caretaker role. This voice puts Indigenous
people in a unique position to protect against environmental threats.
However, Vernest concludes her paper with a lament that although
the courts have recognized a need for accommodation, there has been
inattention and a lack of political action on the part of the Canadian
public.
“...as a developed country
Canada should have a
much better international
track record.”
This past summer, Vernest took these issues to the world stage. She
was selected to participate in the United Nations Office of the High
Commissioner for Human Rights’ Indigenous Fellowship Programme
in Geneva. The program launched in 1997 with the aim of providing
Indigenous people from around the world with training and expertise
in the UN system and human rights mechanisms relating to both
general and indigenous issues. After completing the program, fellows
are in a better position to protect and promote the rights of their
communities at the international level. It was here that Vernest was
able to connect with colleagues from around the globe and learn
about issues facing Indigenous peoples elsewhere.
“Sadly, Canada is not unique with respect to its laws and policies which
have supported the colonial project of land theft and regulation,” she
says. “While, admittedly, there are some countries with more severe
Indigenous human rights violations, as a developed country Canada
should have a much better international track record.”
Now that she’s back in Canada, Vernest is focusing on completing her
articles and beginning a legal practice that will continue her efforts to
advance the rights of Indigenous peoples. While she hopes to practise
in a variety of areas of law, criminal justice in particular has caught
her eye. She notes that although Indigenous people make up less than
five per cent of the Canadian population, they represent a quarter of
those incarcerated.
Vernest has one piece of advice for the profession: “There are so
many myths and stereotypes about Indigenous peoples in Canada.
Everyone, but particularly those in the legal profession, have a duty
to educate themselves on the realities so we all can share this land in
a more egalitarian way.”
You are cordially invited to the
Cape Breton Barristers’ Society
2015 Bench &
Bar Dinner
honouring
Justices Robin C. M. Gogan,
Robert M. Gregan,
Lee Anne MacLeod-Archer, and
Judge Daniel A. MacRury
Saturday, November 28, 2015
Reception: 6:00 pm | Dinner: 7:00 pm
Holiday Inn Harbourfront
300 Esplanade, Sydney
Tickets:
$60.00 per person
RSVP no later than November 15, 2015 to:
Diane L. McGrath QC
[email protected]
P: (902)563-3533 | F: (902) 563-0506
An RSVP form is available on the NSBS website:
www.nsbs.org/event/2015/10/2015-bench-bar-dinner
Find out more about the Race and the Law Essay Prize and read Robin
Vernest’s winning paper at nsbs.org/race-and-law-essay-prize.
Fall 2015
17
Not just going
‘round in circles
Introducing restorative justice in Nova Scotia
18
The Society Record
T
his edition of the Society Record is timely. Restorative justice
in Nova Scotia has never been the subject of so much public
attention as this year. Dalhousie’s restorative approach
to addressing complaints regarding a Facebook site – and related
issues with the climate and culture at the Faculty of Dentistry and
the university – drew national and
international attention. (See the full
Jennifer J. Llewellyn
report on the process at www.dal.ca/
Schulich School of Law
cultureofrespect/process/report-fromthe-restorative-justice-process.html.) At the same time, the Province
announced the establishment of the first restorative public inquiry to
address the harmful history and legacy of the Nova Scotia Home for
Colored Children.
Based on their experiences with the NSRJ Program and research and
scholarly expertise, the partners within the NSRJ-CURA seeded and
supported the development of many of the projects and applications
of restorative justice detailed in the pages that follow and others
including:
•
The Dalhousie University pilot in restorative justice for
students’ on- and off-campus conduct that breaches the law
or university policies. The RJ @ Dal project developed in
accordance with recommendations of the Report from the
Mayor’s Roundtable on Violence and Public Safety in the
Halifax Regional Municipality (led by Dalhousie’s Dr. Donald
Clairmont) and in conjunction with the Province’s pilot
initiative for adult RJ. The partnership among Dalhousie,
HRM, the Halifax Regional Police and the Department of
Justice guiding the pilot also spurred the development of a
broader use of restorative processes on campus. This work was
supported by Security Services, the Office of Human Rights
and Harassment Prevention and Student Services and included,
for example, the restorative process option used in response to
the Facebook incident at the Faculty of Dentistry in 2015. (See
article on page 27.)
•
The Restorative Approach in Schools Project is a provincewide
initiative co-sponsored by the departments of Education and
Justice. The application of restorative justice in schools began
in Nova Scotia as a pilot project of the restorative justice agency
in the Tri-County region in collaboration with then recent
Dalhousie law graduate and legal aid articling clerk Emma
Halpern (now Equity & Access
Officer with the Nova Scotia
Barristers’ Society). She saw a
need and opportunity to put
her knowledge and research
from her restorative justice
course at law school into action
to address an issue at the local
high school. Shortly after, St.
Catherine’s Elementary School
in Halifax – led by the efforts of
its then principal, Richard Derible – implemented a restorative
approach. From this early start developed a provincewide project
supported by a wide network of teachers, administrators and
more than 100 schools in the province. (The work of this network
and project are highlighted on pages 29 and 30.)
In light of the lack of awareness and confusion that has marked
the commentary/debate about the use of restorative justice in these
cases, one might be forgiven for assuming Nova Scotia was new to
restorative justice. But this is far from true. While these examples may
have served as the first serious introduction to restorative justice for
many Nova Scotians, the rest of the world has been paying attention
to Nova Scotia’s leadership in the theory and practice of restorative
justice for some time.
This edition of the Society Record is an important opportunity to
learn more about the breadth and depth of this work in the province,
and to consider the leadership and expertise Nova Scotia has to offer
in this area.
In 1997, Nova Scotia piloted its restorative justice program
(NSRJ). Initially focused on
youth aged 12-17 in conflict
with the law, the program was
expanded provincewide in
1999, resulting in one of the
most comprehensive restorative
justice programs in the world.
For over 15 years, Nova Scotia
has honed its knowledge and
experience with restorative
justice through a remarkable
government/community partnership. The provincial government
partnered with community-based justice agencies to develop, govern
and animate the program across the province.
“A restorative approach is
premised on the view that
people and the world are
deeply interconnected...”
Of particular significance for the program’s development was the
knowledge and experience with Aboriginal justice generously shared
by the Mi’kmaw communities, through the leadership of the Mi’kmaq
Legal Support Network. The Nova Scotia Restorative Justice Program
is now expanding its scope to include adults through pilot projects in
Truro, Cape Breton and at Dalhousie University.
The strength of the relationships and collaborations built through the
NSRJ program led to the development of the Nova Scotia Community
University Research Alliance (www.nsrj-cura.ca), a nationally funded
research initiative that focused on the institutionalization of restorative
justice based in the Nova Scotian experience. This collaboration of
university, government and community considered the nature of a
restorative approach to justice and what this approach might mean
for other areas of social and political life in Nova Scotia.
•
The Nova Scotia Human Rights Commission became aware of
the work within youth justice and in education, both of which
were relevant to its dual mandate of protecting and promoting
human rights in the province. The Commission began its
development and exploration of the potential of a restorative
approach to its work through the use of a restorative justice process
to address a long-standing systemic race complaint by the Halifax
Association of Black Firefighters against the municipal fire service
in Halifax. The process successfully resolved the complaint and
led to an agreement among the parties to work for change within
the fire service. This case set the stage for the comprehensive
changes within the Human Rights Commission processes
including, as Lisa Teryl describes on page 31, the development
of restorative boards of inquiry. The Commission’s experience
Fall 2015
19
offers important insights for other human rights processes and,
more broadly, for administrative processes.
•
Restorative principles and practices have also informed work
within Nova Scotia’s courts. Of particular note has been the
work of the Honourable Pamela S. Williams, Chief Judge of
the Provincial and Family Courts, during her tenure in youth
court and as the inaugural judge of the mental health court in
Dartmouth.
•
Several organizations are taking or considering a restorative
approach to respectful workplace policies, investigations
and discipline on the strength of experiences within schools
and human rights processes. Examples include Corrections,
Community Services, Halifax Fire and Emergency, and the
Public Service Commission. Interest in this work has led Halifax
law firm Pink Larkin to offer a new workshop on restorative
workplace investigations. (pinklarkin.com/pink-larkin-workplaceinvestigations-workshop/.)
•
A collaborative network of government and community
stakeholders – including restorative justice agencies, senior
safety officers, the RCMP, legal counsel and the departments of
Justice and Seniors – has developed the pilot project “Healing
Approaches to Senior Abuse” (HASA), which takes a restorative
approach to senior safety on the South Shore. The project is now
expanding to Cape Breton.
Some only associate a restorative approach with certain practices or
tools developed out of, and in support of, a restorative approach.
Most familiar of these practices is the use of circle or conferencing
processes to address disputes. But restorative work is weakest where
it is simply a mechanism or set of practices to help people get along,
manage behaviour or “be nice”, either in response to problems or in
a proactive preventative way.
Certainly restorative practices can sometimes help people work
collaboratively – but they only have this effect in a meaningful and
sustained way if they are reflective of a different approach or way
of thinking about the nature of the work that is being done, the
processes, policies and practices that structure how we approach work
in various sectors and within organizations.
A closer look at what is happening in Nova Scotia reveals that it is
about much more than a shared set of practices across these areas
and organizations. As the following articles reveal, taking a restorative
approach is not simply a matter of training people up to use certain
practices, tools or language to better relate to each other. It focuses
on the importance and significance of relationship in a much deeper
and broader way.
A restorative approach is premised on the view that people and the
world are deeply interconnected – relational – and when we operate
(within organizations, programs, institutions) as if this is not the case,
or as if it is irrelevant, then we fail to meet the needs of people and to
properly understand or respond to issues, challenges and problems.
A restorative approach in Nova Scotia involves applying a relational
analysis to issues and situations in order to develop processes, policies
and practices that are up to the task of responding in the comprehensive/
connected/integrated ways required by an interconnected world.
20
The Society Record
“Restorative justice in Nova
Scotia is about more than a
different way of doing justice.
It is a different understanding
of what justice requires...”
So as much as a restorative approach draws attention to the ways
in which our interpersonal and professional relationships need
attention within workplaces, schools and communities in order to
support healthy relationships and communities that are essential to
our wellbeing and success, it also requires the same relational analysis
of systems and structures that shape and govern the ways we relate.
Taking a restorative approach thus requires a principled yet responsive
and flexible approach to regulatory and policy frameworks, as
Karen Crombie suggests in her piece based upon her experience of
supporting this work as counsel at Dalhousie (page 27).
A relational framework offers principles for practice to support a
restorative approach and its practices and processes, without reducing
or limiting it to fixed models or forms of practice. These principles
frame what a relational approach entails without prescribing the
practices themselves. As a useful analogy, one might think of them not
as a recipe for restorative justice practice but rather as an articulation
of the principles of cooking upon which good recipes, and their
execution, depend. The principles are not simply relevant for the
procedural elements of a restorative approach but for its substantive
goals and achievements.
These principles, while not an exhaustive list, serve as a helpful guide
for a restorative approach.� A restorative approach to justice is:
i) Relationship focused: It draws attention to the nature or
character of the various relationships involved in, or affected
by, a situation. Restorative justice then takes as its aim the
establishment of “just” relationships – those reflecting core
commitments to equal respect, care/concern and dignity.
ii) Comprehensive / holistic: It requires a relational
understanding of issues and harms, not one focused narrowly
on an incident or issue without attention to causes, contexts
and implications.
iii) Contextual /flexible: It requires processes and practices
that are flexible and responsive to context.
iv) Inclusive and participatory: It draws attention to who
should be included within processes so the process is well
informed and the outcome legitimate for those affected or
involved. It is not enough, however, to simply include all those
affected or with a stake in a situation. Such inclusion must be
meaningful to the process and its outcome. In other words, it
must make a difference that they are included – participation,
not mere presence, is required by a restorative approach.
v) Dialogical or communicative: The meaningful inclusion
contemplated above through collaborative process requires
communication. This is often expressed within restorative
literature as a commitment to dialogical processes. Indeed,
dialogue is a common mechanism for communication and a
powerful one that assures encounter and participation with
one another.
vi) Forward-focused, solution-focused/problem-solving: It
is oriented towards the future. In place of the traditional
focus on ascription of blame and punishment, a restorative
approach to justice seeks to understand what has happened
in order to determine what needs to happen next, with a view
to creating better conditions for relationship in the future.
As you read the examples of restorative justice in Nova Scotia, it is
important to note this common relational approach is reflected across
all of them. Restorative justice in Nova Scotia is about more than a
different way of doing justice. It is a different understanding of what
justice requires – it reflects a relational theory of justice.2
This approach has provided a firm foundation to support restorative
justice in Nova Scotia, resulting in richer, more transformative and
sustainable change for people, organizations, institutions and systems
than has been seen in some other jurisdictions that have relied on
packaged, commercialized practice models and training programs.
Grounding its work in this restorative approach has enabled the
development of restorative practices, processes, policies and programs
tailored to settings and circumstances throughout the province.
Taking a restorative approach, then, invites – and indeed, requires
– more than using particular practices or processes. It is a lens
through which to think about social and legal problems and how to
address them. This edition shares and considers the experiences and
implications of thinking differently about justice, what it requires,
and how it is being done in Nova Scotia. It is a great place to start to
understand and engage with restorative work in the province.
Another opportunity will come this June as Dalhousie University, the
Advisory Council for the Status of Women and the Crime Prevention
Unit of the Department of Justice host an International Restorative
Conference, “Exploring Possibilities: A Restorative Approach to
Climate and Culture in Education, Workplaces and Professions” on
June 27 and 28 at the World Trade and Convention Centre. Many
of those you will hear from and about in this edition will be there
and we hope to see you too. To be on the mailing list for further
information, email [email protected].
1
2
Jennifer Llewellyn is the Viscount Bennett Professor in Law at the
Schulich School of Law and a Fellow at the Centre for Foreign Policy
Studies at Dalhousie University.
*
Jennifer J. Llewellyn, “Restorative Justice: Thinking Relationally about
Justice” in J. Downie & J. Llewellyn (eds.) Being Relational: Reflections on
Relational Theory & Health Law and Policy (Vancouver: UBC Press, 2011).
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Fall 2015
21
Restoring justice through innovation
As part of NSLA’s community outreach and Aboriginal Justice Initiative, lawyer Andrew Kirk provides intake appointments and
summary advice at the Mi’kmaw Native Friendship Centre, and attends the Mi’kmaq Child Development Centre on a regular basis.
N
ova Scotia Legal Aid (NSLA) did a lot more listening over
the last year. We participated in town halls and community
dialogues; we reached out to local community groups and
organizations across the province. We participated in the NSBS
#TalkJustice project
and the CBA Law
Karen Hudson QC
Day. We, along
Executive Director, Nova Scotia Legal Aid
with our Chief
Justice, participated in a public Q&A session at the new Halifax
Library, sponsored by the Legal Information Society of Nova Scotia.
Here is what we heard:
• “I can’t get Legal Aid and I can’t afford a private lawyer.”
• “Lawyers and judges know what is going on but it feels like
I’m the least important person in the room.”
It was clear that the time for change is now. To borrow from the Ivany
Report, NSLA drew upon “our courage, our imagination and our
determination to do better.”
What change looks like for us so far:
• We increased our full service help (a lawyer for the case)
by 8% last year. We refreshed our approach to financial
eligibility, applying discretion mandated by regulation.
• We increased our summary advice services by 28% last year.
• Within the context of our fiscal realities, this means that
our staff stepped up to the plate. Lawyers who did only
full service now also do summary services in community
22
The Society Record
•
•
•
•
•
•
•
•
•
•
•
•
locations; lawyers who did only criminal or family now also
do CPP, disability and residential tenancies cases.
Walk-in and after hours clinics.
Front-end lawyer assisted mediation in child welfare to get
these matters on the right track.
Services in eight Aboriginal communities.
Summary advice services in every family courthouse,
available to all Nova Scotians without financial eligibility
barriers.
Offices go into community locations to provide legal
information seminars and one-on-one advice.
Legal advice to self-represented litigants in family appeals.
Online applications.
Our lawyers drafted more than 40 legal information
documents, added to the public side of our website.
We participated with members of the judiciary, the Department
of Justice and the Department of Community Services in
developing a Child Welfare Parent Information Video (funding
was secured from the Law Foundation of Ontario).
We increased our own cultural competencies. I am proud to
highlight that we received the CBA Nova Scotia Excellence
in Equity and Diversity Award.
We understand the value of a multidisciplinary organization.
Think nurse practitioners. We have our first ever Aboriginal
social worker. She works in triage with lawyers and parents
facing child protection proceedings.
Support staff Navigator Pilot: Support staff appear in
Provincial Court on youth & adult arraignment day.
Photo by Paul Adams photography
Nova Scotia Legal Aid
Therapeutic and restorative
approaches in court offer
viable alternatives
Juriste de l’année 2014
The
Honourable
Justice Arthur J.
LeBlanc of the Nova
Scotia
Supreme
Court received the
award of Juriste de
l’année 2014 (2014
Jurist of the Year)
this past spring.
L’Association
des
juristes d’expression
française
de
la
No u v e l l e - É c o s s e
(l’AJEFNE)
presented it to him for his contributions as a lawyer and a judge
to the accessibility of legal services in French to the Acadian and
broader francophone population of Nova Scotia. At left in the photo
is Association Vice-President Robyn Fougère, who practises with
Evans MacIsaac MacMillan
Hailing from West Arichat, Justice LeBlanc was appointed to the
Bench in 1998. L’AJEFNE noted his reasoning in Doucet-Boudreau
c. N.É. (Ministre de l’Éducation) [2000] N.S.J. No 191, in which
he retained jurisdiction in order to ensure the Province met its
obligation to provide homogeneous French schools to the Acadian
communities, was upheld by the Supreme Court of Canada. The
decision remains a precedent that l’AJEFNE applauds.
Chrystal MacAulay, graduate Joshua & Program Coordinator
Kara Andrews. Josh is now employed full time in his chosen
trade, supports his family and proudly continues to abstain.
Better individual outcomes means better community outcomes.
The Court Monitored Mental Health and Drug
Treatment Program in Kentville has shown much promise in a
short time, says Chrystal MacAulay of Nova Scotia Legal Aid’s
Windsor Office.
“This is a restorative justice approach that began a year and a
half ago with very minimal funding. Born from a conversation
between Ken Greer (NSLA) and Todd Dempsey (Correctional
Services) and a lot of hard work from key partners like Mental
Health and Addictions Services, PPS, PPSC, the Judiciary,
these programs are the result of daring to do things differently.
“Guilty pleas are required as a condition of entry but sentencing
is put on the back burner while focusing on intensive and
individualized treatment plans, using existing community
resources and employing the microscope of accountability.
“Most successful candidates will take between 12-18 months
to complete the program and then they are sentenced for
their offences. Grads are guaranteed non-custodial sentences
(these are non-violent offenders). This is not a ‘get out of jail
free’ card but rather a ‘get out of jail if you really work for it’
card.”
Mediation Services
Jim helps people, businesses and
organizations successfully resolve
conflict themselves, making for better
outcomes, saving time, money and
relationships, and avoiding the risks
and costs of litigation.
If you are looking for a different path
to dispute resolution, contact:
Jim Musgrave, Q.C.
Chartered Mediator
Qualified Arbitrator
Workplace Investigator
Halifax | 902.491.4118
[email protected]
TRAMPOLINE BRANDING
Contact: Larry Bootland 902 405 4809
Project: 10836C&P NS Hali Mediation Ad
Fall 2015
23
Restorative justice groups in
Nova Scotia: Updates and overviews
Communities, a crime-reduction program aimed at stopping gun
violence in our communities. CJS also started the North End
Community Circle (necchalifax.ca), now under Veith House, one of
our community partners.
CJS hosts a biannual Restorative Justice Conference. This year’s event
will take place on November 13 at the Lord Nelson Hotel in Halifax,
with the theme ‘Social Justice in Our Communities: What does it
take to make a just community?’
For more information on Community Justice Society
or any of our programs, please contact 902 424 5473
or [email protected]. Visit us online at
communityjusticesociety.org, find Community Justice Society on
Facebook, and follow us on Twitter @CJS_Halifax.
South Shore Community Justice Society,
Bridgewater
Nova Scotia Restorative Justice/Tri-County
Restorative Justice
Susan Himmelman, Executive Director
Tanya Bain, Executive Director
South Shore Community Justice is working with the Youth
Restorative Justice Program. In addition, we are working on setting
up a Community Dispute Resolution Centre. We of course offer
anger management and self-esteem programs in the schools and are
involved with the RCMP Hub program and the Community Hub
program.
Community Justice Society, Halifax Region
Kelly Adamson, Manager of Volunteer Engagement
Photo courtesy of Tina Comeau, Yarmouth Vanguard
We administer the Nova Scotia Restorative Justice Program (NSRJP)
to youth, ages 12 to 17, in conflict with the law in HRM. The
Community Justice Society began in 1981 as the Youth Alternative
Society, a youth diversion program, and officially became the
Community Justice Society (CJS) in 2001 with the advent of the
provincial NSRJP. The largest agency delivering the NSRJP in Nova
Scotia, CJS employs 12 staff members and has an annual caseload
of more than 400 files. We receive referrals from police, Crown
attorneys, the courts and Correctional Services. Our court liaison
team attends provincial youth court every Thursday. CJS administers the Community Service Order program and
restorative justice conferences for youth in HRM. As part of our
community enhancement initiatives, we deliver three in-house
programs (StopLift, PARTY and Options to Anger), and run a weekly
community drop-in in East Preston and a weekly girls’ group in
North Dartmouth. CJS has a robust volunteer program with over 50
community volunteers who facilitate Restorative Justice Conferences
and other programs. Additionally, CJS houses Ceasefire – Halifax
24
The Society Record
Quick Overview of NSRJ
The core of what we do at the Nova Scotia Restorative Justice Program
(NSRJ) stems from the importance of being relationship focused.
We are able to do this by continuously building and strengthening
community partnerships and collaborating with others to help solve
issues of common concern. We look at the world with a restorative
lens when working with victims, young people, families and members
of our community.
John Howard Society
Christina King, Executive Director
Exploring root causes of crime, having youth take responsibility for
their actions and providing victims with a voice is just one part of
what we do. Working together with various individuals, organizations
and government departments has helped us create enriched networks
and ‘one stop shops’ for citizens to feel better informed of processes
and better connected to their communities. This culture of sharing
knowledge and resources supports a restorative shift in thinking
and has become essential to help communities identify and address
systemic issues, which we feel can be helped significantly with true
collaboration.
Quick overview of TCRJ
When we facilitate a Restorative Conference at Tri-County Restorative
Justice (TCRJ), it is much more than planning a date and bringing
people together. A restorative conference cannot take place prior to
conducting thorough pre-conferences. It is essential for facilitators to
gain a deeper understanding of what has happened and what needs to
happen to move forward. Pre-conference work is the individualized
private/separate meeting(s) that are held with everyone who has been
affected by a particular incident.
The importance of these pre-conferences is to:
•
•
•
•
•
•
gain a better understanding of what has happened/the impact;
discuss expectations for the restorative conference;
ensure willingness to participate in the restorative conference;
explain the role of facilitators;
clarify questionable issues;
think about who else may be appropriate to invite to the
restorative conference;
• discuss underlying issues which may be helpful in being
future-focused;
• discuss community resources; and
• discuss thoughts about outcomes.
We only move forward with a restorative conference once everyone
feels prepared and comfortable to proceed.
Over the last several years, Tri-County RJ has been involved in testing
new ways in which a restorative approach could be implemented
outside of a criminal justice context. We’ve connected to schools
and various community groups to support them in working/
thinking restoratively. We have learned through our partnerships
that a restorative approach is not just for when things go wrong,
it’s thinking about being proactive and preventive, and also about
building and maintaining good and healthy relationships. We see our
increasing interest in working collaboratively across all sectors as an
exciting opportunity to work through conflict, build relationships
and help create healthier communities.
Find out more at www.tricountyrestorativejustice.com.
The John Howard Society of Nova Scotia (JHSNS) – Central
Region works with individuals who have come into conflict with the
law, and promotes crime prevention through positive community
programming and activities. We deliver the Nova Scotia Restorative
Justice Program (NSRJP) in the Colchester East Hants area, serving
a youth population of 5,510 (based on Statistics Canada 2011 data).
Although our NSRJP mandate is working with youth ages 12-17, for
the past five years, we have also served as one of three project sites for
delivering the Integrated Adult Restorative Justice Program (IARJP).
The IARJP is an integrated program with the Department of Justice,
Community Corrections. Part of our NSRJP mandate has us overseeing
the Community Service Order Program for Youth. We are also a Work
Resource Centre, which finds and manages adults who are participating
in the Community Work Program as a condition of their probation
order to perform community service time as directed by the courts.
We strive to be closely connected to the communities in which
we deliver our programs. This may take the form of community
engagement by promoting many restorative initiatives like the
“Giving Back Program” and “How to Write an Effective Apology”. To
address issues that put youth at risk of being involved with the justice
system, we deliver education and crime prevention programs to our
clients and community partners. We offer programs that include
drug, alcohol and justice awareness to local youth groups like the
Boys and Girls Club and YREACH Program. Our Crime Prevention
sessions and Victim Empathy programs help reduce criminal activity
and offer ways to become more productive citizens in the community.
Our Employment Search Assistance Program is a resource for our
clients who are struggling with employment barriers. The program
prepares youth for job interviews, gives them some essential interview
skills, and assists in developing and preparing résumés. The Central
Region also facilitates “Restorative Discussions” at the Nova Institute
for Women. This increases their awareness for victim empathy and
an insight into the advantage of restorative practices in their healing
process. We also partner with and offer support to the Departments of
Justice and Education in using “Restorative Approaches in Schools“.
For more information, visit our website at www.ns.johnhoward.ca
or call the JHSNS Central Regional Office at 902 843 4969.
Fall 2015
25
Island Community Justice Society
Heather McNeil, Director
The Island Community Justice Society (ICJS) began as Island
Alternative Measures in 1986 – a direct community response to the
new-at-the-time Young Offenders Act, which allowed “alternative
measures” for youth who were first-time offenders of what was
considered low-end offences such as shoplifting or drinking
underage. In 1999, the name changed to Island Community Justice
Society to better reflect the new service – the Nova Scotia Restorative
Justice Program – and to position it better for the implementation
in 2003 of the Youth Criminal Justice Act, which called for a broader
community response to crime. The ICJS service area is Cape Breton Island, with the Cape Breton
Regional Municipality and Victoria County served by Sydney and
Port Hawkesbury offices looking after Inverness and Richmond
Counties. ICJS boasts a small staff team, five full-time and two parttime, who do their work with the support of volunteers to deliver
the Restorative Justice Program and the Community Service Order
Program for the Department of Justice.
In addition to restorative justice conferences for youth ages 12-17, two
designated pilot sites, Truro and Cape Breton Regional Municipality,
began working with adult referrals in February 2011. Four years later,
we continue to provide Restorative Justice Services for adult offenders
and have completed 249 sessions with 1,242 participants taking part.
Along with these services, our agency also works in partnership with
Education, Human Rights, Corrections and seniors to deliver a
restorative approach.
For more information on Island Community Justice Society or any of
our programs, please contact 902 563 2596 or visit us online at www.
islandcommunityjustice.com.
Cumberland Restorative Justice Society
Jennifer Furlong, Executive Director
Cumberland Restorative Justice Society (CRJS) is located in
downtown Amherst and serves all communities in Cumberland
County including Parrsboro, Pugwash, Oxford, Springhill and
all the places in between. It is a non-profit organization governed
by a volunteer board of directors. CRJS has three employees and
approximately 10 volunteers. CRJS accepts students from NSCC,
NBCC, the Nova Scotia Institute of Human Services, and Eastern
College for educational work placements.
26
The Society Record
Cumberland Restorative Justice Society provides programs and
services to youth and adults in conflict with the law, and to victims
of crime, through the Nova Scotia Restorative Justice Program,
Community Service Order Program and anger management
programs. We collaborate with local services and organizations
to strive towards creating a safe and healthy community. We offer
training and support to organizations wishing to implement a
restorative approach into their operations. For more information, see
www.cumberlandrj.ca.
Reflections on Dalhousie’s
Facebook incident 2014-2015
T
he May 2015 report from the Restorative Justice Process at
Dalhousie University tells a powerful story of the Facebook
incident, the process elected by the majority of students in
the graduating class, the corresponding journey of self-exploration
and reflection of the participants and their examination of the climate
and culture within which the incident occurred. The ideas advanced
for making positive changes to the climate and culture outlined in the
report provide a good foundation for the university’s way forward.
Was this process perfect? No. Was everyone affected by the incident
satisfied with the process and the outcomes? No. Was it, on balance,
successful? Yes. Would I recommend that restorative justice processes
be used to address conflict in the university and other organizations?
Absolutely.
In December 2014, inappropriate Facebook posts by students about
their classmates were brought to the university’s attention, and a short
time later were also leaked to the media. Decisions had to be made
concerning how to address the matter within a maelstrom of opinion
and pressure from both inside and outside the university. Everyone
had an opinion. Few had the facts.
Like many organizations, Dalhousie has harassment and discrimination
policies and standards of expected conduct. Like many organizations,
such policies outline formal conflict resolution procedures that are
complaint-driven, rights-based, and ultimately lead to an adversarialbased adjudicative process. Informal resolution typically takes the
form of mediation. Such processes are well within the comfort zone
of most lawyers providing advice to decision makers. Policy wording
combined with an understanding of administrative law and, where
applicable, employment law, provide a clear framework with a small
menu of process variations and possible outcomes.
The Facebook incident presented an incredible process challenge.
There were numerous respondents, which brings all of the logistical
challenges and risks
Karen Crombie
associated with having
General Counsel, Dalhousie University
multiple proceedings –
cumbersome processes
leading to inevitable delays and the likelihood of conflicting outcomes.
The initial complainants were not in agreement about whether to
proceed informally or formally, and as further potential complainants
were identified, they wanted differing levels of engagement in addressing
the matter. Lack of engagement of a complainant often impacts the
available evidence that can be brought to bear on the matter as well as
the severity of the action that can be taken against a respondent.
Also, it quickly became clear that this situation was not just about
some students in a particular class but that it was about the dynamic
of an entire class of more than 40 people. (Later inquiries revealed that
the issues extended beyond the class to the faculty as a whole, which
in turn was a reflection of the broader university community and
society as a whole). How could a rights-based adjudicative structure
appropriately address such issues in a satisfactory way?
Luckily, the university’s policies do not prescribe the form of informal
resolution. This flexibility in policy provided the opportunity to
consider other less traditional processes for addressing the matter.
Exploration of the use of restorative justice processes was underway in
different pockets of the university but had never been used for an issue
of this magnitude and complexity. When some of the complainants
indicated that they just wanted the respondents to understand why
their actions were inappropriate and to learn from the situation,
the restorative justice option was explored more fully. Aided by
Dalhousie restorative justice expert, Professor Jennifer Llewellyn,
the two restorative justice facilitators (who are highly skilled and
experienced in their own right) created a framework for the process in
consultation with counsel. The challenge in creating the framework
was the need to ensure procedural fairness and accountability while
providing safe conditions for the difficult exploration that is an
Fall 2015
27
integral part of any restorative justice process. Also, it had to be
consistent with and complementary to other university policy. It
had to be free from interference by other university decision makers.
The university’s privacy obligations had to be respected. Ultimately,
the majority of the class in
question elected to participate,
along with members of the
Faculty, the university more
broadly, the profession and the
community at large.
As noted at the outset, all was not roses. Not everyone participated,
and some felt that their interests were ignored. Some questioned the
framework that was established to make it work for this particular
situation. Experts disagreed on what types of situations restorative
justice processes should or should
not address. Ten months after the
incident came to the university’s
attention, the internal debates
continue (such is the essential
lifeblood of the university).
The details of the process, the
findings, and the proposed
outcomes are well described
in the report, and need not
be repeated here. From my
perspective, the restorative
justice process was a highly
effective tool. Individuals
were held to account for their behaviours – active participants and
bystanders alike. The context of the behaviour was explored in a way
that caused participants to understand the culture within which they
operated and their own role in shaping that culture. This reflection
led to an appreciation of how structures and processes within the
Faculty inadvertently contributed to the culture, which in turn
informed the discussion on how changes could be made. And, it
was concluded inside five months, with a clear path forward. This
could not have been accomplished within a traditional rights-based,
complaint-driven process.
I learned many things from
this incident, but two things in
particular stand out. One, it is
important to ensure that internal
policies are flexible enough to
allow for innovative approaches.
Two, restorative justice should be
a tool in every conflict resolution
toolkit. It is not perfect for every situation, but it can be very effective
when addressing group behaviour, systemic and cultural issues as well
as providing a new way of thinking about conflict generally.
“The context of the behaviour
was explored in a way that
caused participants to
understand the culture within
which they operated and their
own role in shaping that culture.”
28
The Society Record
See the Report from the Restorative Justice Process at Dalhousie
University: www.dal.ca/cultureofrespect/process/report-from-therestorative-justice-process.html.
Nova Scotia’s Restorative
Approach in Schools Project
“A restorative approach in schools is founded on the belief that in order to build safe and healthy school communities,
we must strengthen and support our social relationships through community participation, respectful dialogue and
sustainable processes that build and strengthen relationships. In this way, opportunities can develop for all school
community members to feel empowered and engaged and hence to participate meaningfully.”
— Emma Halpern, Building School Communities of Attachment and Relationship – A Restorative Approach to Schools in Nova Scotia
S
ince September 2012, Nova Scotia’s Restorative Approach in
Schools Project (RAISP) has provided interested schools in
Nova Scotia with the tools, resources and ongoing professional
development necessary to adopt a restorative approach. The project is
a collaboration of the Departments of Justice and Education & Early
Childhood Development.
Taking a restorative approach in schools means looking at all aspects
(activities, procedures, traditions) of a school’s day-to-day functioning
through a lens that examines their relational impact on the students
in the building. When developing procedures, policies and activities,
asking relational questions like “What is our goal?” and “Who will
be affected and how by the way in which we go about achieving
that goal?” increases the potential for every student to feel like they
belong, like they are valued, and that their teachers and their peers
care about them.
Adopting a restorative approach in schools helps educators figure out
new ways, and enhance the things they are already doing, in order to
“make room” for every student.
In an earlier pilot project that was a precursor to the RAISP, one
school that had adopted a
Richard Derible
restorative approach over a
School Administration Supervisor
five-year period reported a
Halifax Regional School Board
closing of the achievement
gap that had been a feature of the school: overall student achievement
on external assessments climbed from a 60 per cent success rate to
success rates in the 90 per cent range. This school also saw a dramatic
decline in disruptive behaviour.
So far, more than 100 schools have signed on to the RAISP, joining a
growing list of schools in the province that see a restorative approach
as a game changer, a way to improve school culture, boost student
achievement and create caring and safe schools.
Already, taking a restorative approach to education has delivered
on this promise, with teachers reporting calmer classrooms, more
engaged learners and more time on task; principals are reporting a
decrease in disruptive behaviour, increased staff morale and better
school attachment for students.
To date, almost a thousand teachers and more than 150 school-based
administrators from across the province have received restorative
Fall 2015
29
approach professional development and have joined a nascent
restorative approach provincial network with a variety of partners,
including the of Department of Education and Early Childhood
Development (DOEECD), the Department of Justice (DOJ),
Dalhousie University (NSRJ-CURA) and the province’s nine
Restorative Justice Agencies.
Considerable professional development capacity has been built across
the network with over one hundred educators, SchoolsPlus staff and
Restorative Justice Agency staff poised to support schools and other
organizations seeking to adopt a restorative approach.
Through her work in the area of relational theory and restorative
justice, Professor Jennifer Llewellyn
of the Schulich School of Law at
Dalhousie University is providing
significant support to the network
and to the schools interested
in learning about a restorative
approach.
about learning in a restorative classroom. This is what some of them
said:
“I love the atmosphere. It doesn’t feel like a class, yet we are all
very productive and also intrigued during class discussions. I
actually know the students in my class. I’m comfortable being
in a group with everyone, not just my friends.”
“I find we’re more like a big family than a class.”
“The circle makes 36 students in a room a class, not 36
individuals. It is the only class where I know everyone’s
name.”
“To date, almost a thousand
teachers and more than 150
school-based administrators
Teachers who have worked with
Jennifer and who are using a
restorative approach in their
classrooms are reporting important
shifts in the way their students relate
to one another and to their school:
from across the province have
These stories are just a few of the
great things happening in schools
that have adopted a restorative
approach – and they are evidence
that thinking relationally and
thinking restoratively has taken
hold in our province’s schools.
The RAISP continues to
provide the space for an ongoing
conversation around how to
enhance our support for students,
staff and communities through a
restorative approach. For more
information on the Restorative Approach in Schools Project please
contact me at [email protected].
received restorative approach
professional development...”
• A high school teacher describes how one of her students,
who has just returned to school for the first time in over a
year, has become more attached to his school and is an active
participant in her class through the restorative processes she
is supporting in her classroom, including giving her students
a regular opportunity to share their goals and concerns with
each other.
• An elementary teacher shares a story about the day her students
organized an activity, on their own, where each of the students
told their tablemates something they liked about each other.
Failure Investigations
Analysis and Design
Building Restoration
Reports for Litigation
Consulting Professional Engineering
• Students in a grade two class are all taught sign language
because one of their classmates is hearing impaired.
• Two schools in Nova Scotia took “bus tours” of their school
community and met with elders and community leaders
in an effort to better understand the children they were
teaching, asking the question, “What do you think we need
to need to know about this community in order to better
support your children in school?” (www.pictouadvocate.
com/2015/03/11/teachers-educated-about-boat-harbour/,
www.youtube.com/watch?v=PGk01isb1Ts)
•
Two teachers support a summer reading program from the back
of their car. (www.youtube.com/watch?v=qdS7tZfGCMQ)
•
An elementary teacher reports incredible academic gains for
some of her students since adopting a restorative approach in
her classroom. (www.youtube.com/watch?v=eu14z6zG7VM)
•
A number of restorative schools in Nova Scotia start referring
to substitute teachers as “guest” teachers.
And finally, one high school teacher asked his students how they felt
30
The Society Record
James (Jim) W. Cowie, P.Eng.
B.Sc., B.Eng., M.Eng.
President
Suite 200
1046 Barrington Street
Halifax, Nova Scotia
B3H 2R1
tel (902) 422-4493
fax (902) 422-5066
res (902) 423-4318
[email protected]
www.cowieengineering.ca
Halifax • Toronto
Consulting Structural, Architectural and Forensic Engineering
Incorporated in Halifax in 1972
Pictou keynote: The Hon. Justice Thomas A.
Cromwell (right), Lisa Teryl (left)
A restorative adjudication process shows promise
N
ova Scotia is the first province in Canada to integrate
restorative justice principles into an administrative agency –
the Nova Scotia Human Rights Commission. In 2012, one
of the administrative agency’s reforms created an option for restorative
procedures for human rights hearings, in an effort to improve access
to justice. The reforms focused on fairness, supporting people and
their relationships. To date, Nova Scotia has six adjudicated decisions
using restorative procedures.1 This innovation is another indication
of the province’s global leadership in restorative justice and illustrates
how restorative principles can be applied to administrative hearings.2
Improved access to justice
When restorative principles guided the agency’s changes, access to
justice increased dramatically through significant cost savings and time
efficiencies.3 Investigation time was reduced 83 per cent (from three
years to six months) and hearing times were also reduced by more than
80 per cent (from five days to one day). By incorporating restorative
1
Canada’s first restorative Board of Inquiry was Hewey and 634623 NB Ltd,
2013 CanLII 91794 (NS HRC) (Chair: Nelson Blackburn). Four decisions are found on the
Commission’s website http://humanrights.gov.ns.ca: Gilpin and Alehouse, June 2013,
(Chair: Walter Thompson); Gregory and Central Hair, May 2013 (Chair Peter Nathanson);
Tanner and Alumitech Distributions Centre Limited, March 2015 (Chair: Gail Gatchalian);
Clattenburg-Pace, Clattenburg v. Boutilier’s Glen Campground, August 2015 (Chair: Walter Thompson). One decision is pending: Fraser and Dragon Buffet King, February 2015
(Chair: Lynn Connors).
2
Nova Scotia was the first jurisdiction in the world to integrate restorative
justice processes into its formal youth criminal justice system (Source: Professor Jennifer
Llewellyn). In Canada, retired Chief Justice, Yukon Territorial Court Judge Barry Stuart, pioneered the use of restorative justice in sentencing circles. Professor Jennifer Llewellyn articulates these principles in an unpublished working paper, 2014. Examples of restorative
principles are: relationship-focused, forward-focused, comprehensive/holistic, dialogical/
communicative, democratic, transparent, and solution-focused.
3
The average cost for two traditional hearings (adjudicator, court clerk and
hearing space costs) with an average of six witnesses was $52,000 and lasted, on average, 10 days. The averages for the two restorative hearings were: five witnesses, hearing
costs of $7,300 and the hearing lasted three quarters of a day.
principles,
resolutions
became
collaborative, more meaningful and,
as one adjudicator wrote, “as efficient
and as cost effect...[tive] as possible.”4
Lisa Teryl
Teryl Scott, Lawyers Inc.
The process: Establishing values up front
Restorative conflict resolutions begin by initially asking the parties
what values they hold. These questions include asking what is fair;
what would make things right? These values guide the process and
become the standards to which the parties hold themselves responsible.
There is an effort to resolve the conflict based on the parties’ values
and sense of fairness, rather than an adjudicator-imposed decision.
Clarifying harms and responsibilities
The parties are then asked to clarify harms and responsibilities. In cases
where harms were agreed, the person who created them acknowledges
and rectifies it. This process often left both parties feeling they had
achieved just outcomes. By addressing the needs caused from the
harms in meaningful ways, the person who was harmed felt restored,
as did the person who did the wrong.
The program assumed that if respondents agreed they had created
harm, the best way to take responsibility and make amends is to
empower them to do so. In order to face the consequences inherent in
trying to repair harms they created, the respondents had to feel safe.
The program’s stated principle of avoiding further harms to either
party or their relationship supported a safe way to make amends.
Furthermore, articulating restorative principles allowed participants
to hold the agency to these standards, as well.
4 Ibid footnote 1, Glipin and Alehouse, June 2013, p.14.
Fall 2015
31
Restorative hearings
A hearing is required if parties cannot agree on whether harm was
created or how it should be rectified.5 Although contested, these
hearings are not adversarial. They are collaborative and highly
transparent.6 Rather than using a traditional cross-examination
approach, the adjudicator takes the lead in questioning parties
and witnesses. There is no formal opening and closing of a case.
All relevant parties to the issue are brought together in the same
conversation to provide their evidence.
One of the benefits of incorporating these changes into the hearing
process was to maximize participation of parties and witnesses. They
were able to add information/evidence into the conversation as often
as they wished after listening to everyone else’s comments. As one
Board Chair wrote, it can allow the parties to have a “better and
somewhat more sympathetic understanding of each other’s point of
view.” It can also help the adjudicator gain a robust understanding
through a less rigid and “perhaps more self-revelatory restorative
process.”7 This group discussion removed the high-stakes litigation
format where the witnesses lose their chance to speak as soon as they
leave the witness chair.
This form of adjudicator-led questioning created more candid
discussion about what happened and how participants were impacted
by it. For example, in Gilpin,8 the parties had opportunities to discuss
the impact of the events in question. They had the satisfaction of
being heard by the rest of the participants in a facilitated discussion.
There also appeared to be a greater coherency to the information
when not orchestrated through direct and cross-examination.
Another change in the hearing was to incorporate a restorative
sensibility into the manner the decision was rendered. In Hewey, for
example, adjudicator Nelson Blackburn found liability.9 Although the
respondent was not happy with the finding, the respondent benefitted
from Blackburn rendering the decision in person immediately after
the listening to the evidence. Blackburn acknowledged the manager
had done well in other areas and had good intentions behind various
actions. He then advised him that, despite these intentions, a greater
duty of accommodation was required of the complainant’s disability.
Therefore the complaint was upheld.
In a supportive environment, the manager had an opportunity to
consider how the decision would impact him. In this way, the process
was concerned not just for the person who was harmed, but also for
the person who did the harm. The principle of mitigating harms for
all parties was adhered to. Typically the relationships between the
complainants and respondents remained strained after these decisions;
however, the process increased mutual understanding in a collaborative
context and as a result did not harm their relationships further.
Another benefit of incorporating a restorative sensibility into the
way decisions are made can be found in Gregory.10 The remedy was
5
Commission approval is required for a hearing.
6
See the Nova Scotia Human Rights Commission’s website for the restorative
hearing framework: http://humanrights.gov.ns.ca and supporting legal brief: https://
www.facebook.com/TribunalAccessToJustice.
7 Clattenberg, ibid footnote 1, p.2.
8
Ibid footnote 1.
9
Ibid footnote 1.
10 Ibid footnote 1.
32
The Society Record
unequivocally affirmed by the parties to be fair. They had presented
Chair Peter Nathanson with a partial plan that acknowledged
discrimination. The Chair was then asked to help determine how
wage losses should be paid. The complainant wanted a lump sum; the
respondent, monthly instalments over a few years.
As part of the discussion, Nathanson masterfully asked the parties to
explain the other person’s reasons for their position. These questions
led them to gain greater appreciation of the other’s concerns. Having
developed a shared understanding regarding each other’s perspectives
on just outcomes, he was able to render a decision they were both
more willing to accept. He compassionately articulated both of their
heartfelt concerns and upheld them in the way he crafted the remedy.
Later with the restorative facilitator, they expressed feeling heard and
their values affirmed. Visibly moved, the parties were relieved and
satisfied with the decision.
A way forward
A restorative adjudication process shows promise in supporting principles
of access to justice: low reliance on lawyers/technical procedures and
quick, fair, proportional and cost-effective adjudications.11 Perhaps this
collaborative, relational approach can inform and enhance access to
justice in civil, criminal and family courts, as well.
Lisa Teryl is a restorative facilitator and litigator with Teryl Scott, Lawyers
Inc. Her firm recently launched Divorcing Well®, based on restorative
and access to justice principles.
11
See the Nova Scotia Provincial Access to Justice Tribunal Committee’s
recently articulated principles https://www.facebook.com/TribunalAccessToJustice.
Kudos for NSBS: ‘Standout national leadership’
A full-beyond-capacity keynote talk in
Pictou focused on the Honourable
Justice Thomas Cromwell’s optimism
for creating better access to justice in
Canada. At the September 2015 dinner
hosted by the Pictou County Barristers’
Society, Justice Cromwell praised Nova
Scotia’s work, stating the Nova Scotia Barristers’ Society
is providing standout national leadership on access to
justice. He further clarified the Society’s access to justice
plan is punching significantly over its weight.
The Supreme Court of Canada judge’s optimism stems
from a growing recognition within the profession that
solutions must be systemic and collaborative – and entail
a culture shift.
He quoted the Court’s recent 2014 decision, Hyrniak v.
Mauldin, in support of this need for a culture shift: “A proper
balance requires simplified and proportionate procedures
for adjudication, and impacts the role of counsel and
judges. This balance must recognize that a process can
be fair and just, without the expense and delay of a trial,
and that alternative models of adjudication are no less
legitimate than the conventional trial”(para 27).
Family Group Conference:
Mi’kmaq Perspective
M
i’kmaw Family & Children’s Services of Nova Scotia offers
a wide range of services to children and their families that
promote an environment conducive to their well-being.
The agency continues seeking to apply more culturally appropriate
interventions and to strengthen families and communities. One of
the services the Agency is offering is Family Group Conferencing and
Decision Making.
In 2003, Mi’kmaw Family & Children’s Services of Nova Scotia
(MFCS) participated in a family group conference (FGC) research
pilot project. The project was to determine how effective the FGC
approach was as practised within the agency. The purpose of the
research was to evaluate two ways of proceeding: the FGC method
and the standard method, to see if one approach is more efficient
than the other. The MFCS staff helped in the delivery of this research
project, which had a time limit of two years, with the final report
expected on December 31, 2004.
In 2003, a full-time FGC Coordinator was hired to coordinate
family-focused circles so that plans could be developed with all the
individuals involved. This one coordinator worked with families across
the province and coordinated Family Group Conference meetings
upon a referral system. In 2013, a second full-time Family Group
Conference Coordinator was hired by the agency to accommodate the
growing number of referrals in the agency throughout the province.
The Family Group Conference program at present consists of two
full-time Coordinators to cover all 13 First Nations communities in
Nova Scotia.
What exactly is a family group conference?
Family Group Conference is definitely not a new approach nor is it
unique to just child welfare. It is a very old idea that is titled with
fancy wording. Family Group Conference is a way of giving families
the opportunity to get together to try and make the best plan possible
for the children. The Family Group Conference approach restores
the central role and
Kristen Basque
responsibility of the
Supervisor, Family Group Conferencing
family, as well as
Mi’kmaw Family & Children’s Services of Nova
Scotia
the community, in
dealing with issues
that arise within the family. It shifts the power to decide back to
the families and empowers families to take responsibility for their
children and their family. But at the same time, MFCS retains the
responsibility to ensure that the plans that are developed result in
a safe environment and ensure the best interests of the children,
respecting the culture and values of the family. The Family Group
Conference process fosters cooperation, collaboration and importantly
communication between professionals and families. It should uphold
the integrity and dignity of the family group by helping them take
the initiative in planning how to resolve issues within their family.
The Family Group Conference very much resembles the Healing
Circle and Talking Circle of our culture. For many Mìkmaq and
other Aboriginals, the circle is a powerful symbol of connectivity and
completeness. The Healing Circle/Talking Circle has long been a
place where everyone is equal, where all can have a say. It is a healing
circle where the heart can be unburdened, and words of consolation
can be freely spoken. Everyone in the circle has a piece of truth
and everyone’s contribution is needed to make it whole. Cultural
components in FGC are reflected in who is present, ceremonies
(opening prayers, smudging), Talking Circles and their rules, having
a feast, and ensuring that children and other family members at home
are cared for. More fundamentally, the FGC approach is consistent
with long-established traditions of the Mi’kmaq people for resolving
issues of concerns, as reflected in our ceremonies and language.
Mi’kmaw Family and Children’s Services has recognized the need
and value in offering the Family Group Conference Program to the
families we serve. The family group conference (continued on page 37)
Fall 2015
33
Restorative inquiry an innovative approach to examine past abuses at
Nova Scotia Home for Colored Children
T
here’s an old African motif – the Sankofa – that has been
embraced by present-day Black communities in North
America, including here in Nova Scotia. The image of a bird
going forward, with its head turned back and paying close attention
to an egg, provides wisdom with a universal message.
troubled youth are properly cared for by
diligent staff. In the bad old days, when
it was an orphanage housing AfricanNova Scotian and biracial youngsters, it
was a different story.
It teaches people this: we must look at and learn from our past for
guidance for our future.
Last year, Justice Arthur LeBlanc of the Supreme Court of Nova Scotia
approved a $29-million settlement stemming from a class-action
lawsuit filed on behalf of survivors of abuse at the Home for Colored
Children. The agreement with the provincial government finally put
about 15 years of litigation to bed. In 2013, the court signed off on a
$5-million settlement between the Home’s administration and abuse
survivors.
The Sankofa – it’s a Ghanaian word essentially meaning “reach back
and get it” – is a symbol former residents of the Nova Scotia Home
for Colored Children have been using in their meetings together. Its
design has also been adopted by the restorative inquiry looking into
past abuse at the Home.
A traumatic past. A contemporary coping, or perhaps, an enduring
emotional struggle. Bigotry. A community’s history. A brighter future.
This inquiry is about all of that.
The Nova Scotia Home for Colored Children
currently operates as a short-term, child-welfare centre where
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The Society Record
Michael Lightstone
Freelancer
As well as compensation, public apologies have been issued to former
residents by Premier Stephen McNeil and a representative of the
Home’s board. These statements and settlements came after previous
boards and governments failed to address a multitude of allegations
of mistreatment.
Photo provided by
the Public Archives of Nova Scotia
Journey to light
The premier promised an inquiry into past abuses at the orphanage,
the process of which was explained months ago at an event in
Upper Hammonds Plains. Recommendations will be made, and the
outcome from the survivors’ “journey to light” will not only affect the
province’s African-Nova Scotian communities but society as a whole,
the briefing about the inquiry heard.
“What happened at the Home, while tragic, is just one aspect of what’s
going on in our society around us,” former resident Tony Smith told
the event last June at a local church in the historic Black community.
“The Home is the lens that is reflective of a bigger picture within the
province,” he said. On a table to his left sat a sculpture of the Sankofa.
At press time, the restorative inquiry into the Home was scheduled
to start sometime in November. It’s a combined
effort, overseen by a council of parties that
includes former residents, a member of
the Home’s board, government officials
and members of the African-Nova
Scotian community. Though a
judge will be involved in the
process (we’ll get to that later),
the inquiry has been designed
to have participants collaborate
with one another without the
presence of legal professionals.
Nova
Scotia
is
certainly not foreign
territory when it comes
to public inquiries of the type
presided over by a judge or
former jurist, with sworn testimony,
cross-examination and legal counsel
representing multiple parties. Examples
over the years of this kind of more traditional
probe include an inquiry into the death of a Halifax
teacher’s aide, the review of Nova Scotia’s response to institutional
abuse, the Westray mine disaster inquiry and the Royal Commission
on the Donald Marshall, Jr., Prosecution.
Inquiries are established by governments and cover matters of concern
to communities and the public at large. In the past, recommendations
(which aren’t legally binding) from such proceedings have been
implemented. Others, however, have been ignored. And the cost
to the taxpayer of these fact-finding missions is not cheap. (See the
sidebar on page 36.)
The upcoming inquiry into the Home for Colored Children is
a restorative model focusing on avoiding further harm to abuse
survivors. Establishing culpability is not the goal of the examination
of what went wrong. Personal and community healing, truthseeking, learning from misdeeds of the past and preventing future
maltreatment of vulnerable children are components of the endgame
of this less adversarial, more collaborative process.
“The Nova Scotia Home for Colored Children restorative inquiry
will reveal and address part of the harmful legacy of racism in Nova
Scotia by examining the Home and the experiences of former
residents, as well as the impact on their families and communities,”
a government website says. The budget for the inquiry, which could
last up to two-and-a-half years, is $5 million. Sessions are to be held
at various locations in the province.
According to the restorative inquiry’s guiding
principles, not all meetings will be in public “or open to everyone
who wishes to participate.” However, “every process will consider
how to ensure knowledge and learning gained therein is accessible to
the broader public. The overall work of the (inquiry) must be done in
the public interest and for public benefit.”
The health and welfare of abuse survivors will be key elements of
support provided to them during the proceedings, according to the
provincial government. The Province issued a call for applications
by September 10, for a health-support leader who’s
to ensure “all inquiry processes proceed in a
(trauma-informed) manner” to help make
sure survivors aren’t subjected to further
harm. A government posting for other
term positions included one for a
community-engagement leader, to act
as a liaison between the African-Nova
Scotian community and the inquiry.
In an interview, Smith said he believes
the inquiry will help expose hard
truths and ultimately provide justice
for individual survivors of abuse at the
Home for Colored Children. He’s also
confident it will speak to the “harmful
legacy of racism” in the province, and
will be carried out for the public good.
“We’ll look at what went wrong, what we can do
to improve and why it matters” to Nova Scotians,
Smith said. Although the inquiry into the Home will
not be the more adversarial type of probe, he said, it will still
have subpoena powers “that would only be used in extreme cases.”
Class counsel Mike Dull, of the Halifax firm that worked on the
former residents’ behalf, said one jurist – the Honourable Pam
Williams, Chief Judge of the Provincial and Family Courts – is the
only judge involved in the restorative inquiry, and is to be “part of a
team of individuals who will decide on questions of subpoenas.”
Dull, of Wagners law firm and a member of the restorative
inquiry’s design group, said Williams won’t be hearing evidence or
making findings of fact. The inquiry is not a legal process. “Hence,
legal professionals are not required. We see judges’ and lawyers’
involvement in such a restorative process as perhaps inhibitive to the
ultimate goal,” said Dull, in an email interview in September.
Last spring, the provincial government announced plans for an
amendment to the Public Inquiries Act that Smith, who’s also on the
inquiry’s design team, said should help former residents speak more
freely during the sessions. The change was expected to pass in the fall
session of the legislature.
“That immunity is for us so we can name the perpetrators without
fearing that they would take civil suit against us,” Smith said. Some
Fall 2015
35
Public inquiries: Hefty price tags
Legal professionals, academics, students and others can
debate the merits of public inquiries, but what’s not in dispute
is such proceedings are lengthy and very expensive.
Whether society gets value for public money that’s being spent
is a question for another day. (And the answers will inevitably
depend on who’s being asked.)
What follows are some examples of provincial and national
inquiries, and their price tags:
teenagers awaiting trial.
• The cost of the Westray inquiry was about $5 million.
Public hearings looked into the 1992 mine explosion in
Plymouth, Pictou County, which took the lives of 26 coal
miners underground at the time. The inquiry’s report said
the disaster resulted from a “complex mosaic of actions,
omissions, mistakes, incompetence, apathy, cynicism,
stupidity and neglect.”
• The budget is $5 million for the restorative inquiry into
abuse at the Nova Scotia Home for Colored Children,
according to the provincial government. The proceedings
are examining the mistreatment of former residents at
the Home when they were youngsters.
• Canada’s royal commission on aboriginal peoples, held
during the 1990s, cost around $60 million. It took place
years after a royal commission in the 1980s on the
prosecution of the late Donald Marshall Jr., who was
jailed 11 years for a 1971 murder, in Sydney, he didn’t
commit. Findings from the latter inquiry showed the Cape
Breton Mi’kmaq man was a victim of systemic racism.
• An inquiry that probed the 2004 car-crash death of
Theresa McEvoy, a Halifax teacher’s aide, cost about
$1.5 million. It made recommendations on improving
the youth-court system and beefing up laws overseeing
• In 2002, the royal commission on the future of health
care in Canada released its report. The one-man inquiry,
helmed by former Saskatchewan premier Roy Romanow,
cost $1.5 million, according to reports.
of the abusers are dead, he acknowledged.
will help come up with recommendations, which the premier has said
could start to be implemented while the restorative sessions proceed.
“We don’t have to wait until the end of the inquiry to act,” McNeil
said in the June announcement. “As it progresses, (the) government
and community will work together on what we can begin to do right
now to make a difference for the future.”
Dull stressed the inquiry is not about assigning blame. “There is
substantial evidence that the judicial route ultimately leaves victims
unsatisfied or worse, more harmed than before.” Like Smith, he too
said the restorative process “is hoped to be more rewarding to (former
residents) because it looks at the bigger picture.”
Social justice matters that see enduring
wrongs get righted by a restorative settlement or program (or inquiry)
aren’t new to this province. Indeed, the seeds were planted here in
the 1990s. Nova Scotia has a Restorative Justice Program, affecting
offenders, crime victims and communities, and the province’s human
rights commission uses restorative approaches to resolve disputes.
The Restorative Justice Program’s goals and objectives are to reduce
recidivism, increase victim satisfaction, strengthen communities and
increase public confidence in Nova Scotia’s justice system. With
respect to human rights, the restorative model provides an alternative
to the standard system of dispute resolution.
For instance in 2013, unionized black firefighters and their
employer, Halifax city hall, used the restorative option to settle a
high-profile human rights complaint the workers filed in 2008,
though that specific resolution process wasn’t without criticism.
Nine African-Nova Scotian firefighters had alleged “individual
and systemic discrimination on the basis of race and colour,
against each of them... and as a group, by the Halifax Regional
Municipality,” says the Nova Scotia Human Rights Commission.
With respect to recommendations and actions arising from the
inquiry into past abuse at the Home, they’ll work differently than
those stemming from the process governing other inquiries. A task
group of Black community members and government representatives
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The Society Record
On the criminal justice front, Halifax Regional
Police and the RCMP won’t be laying charges in the child-abuse case
involving the Home for Colored Children.
Officers travelled through Nova Scotia and four other provinces to
interview 40 complainants; the evidence brought forward didn’t
support the laying of charges, police said in December 2012. “It is
important to understand that in order for police to lay charges in
any investigation these grounds must be supported by evidence that
will withstand the scrutiny of the court process,” a release from the
RCMP said.
Smith said it’s the opinion of abuse survivors that the investigation
“was shoddy.” He said hopefully elements of the police effort would
“reveal themselves” during part of the restorative inquiry.
Founded in 1921, the Dartmouth-area Home
was established as an orphanage to look after unwanted and neglected
youngsters. But instead of making sure the children placed at the site
were safe and well cared for, some adults working there abused them.
Other staffers encouraged resident-on-resident abuse, or stood idly
by while children were being mistreated.
Many court documents about the cruelty that went on inside the
Home have been filed over the years. In those records, survivors,
who are now adults, described the abuse they said they suffered as
unprotected children living there.
Former residents, who were essentially wards of the state, said rapes
took place, there were beatings at the hands of staff or other children,
psychological abuse was common and living conditions were
substandard. Though generations of kids were attacked or mistreated
up until the 1980s, the grownups who should have stopped the abuse
were deaf to the cries of those who suffered.
They failed to protect the former residents and in doing so neglected
to do their duty. Smith said he expects “the full story” to come out
during the public inquiry into the Home.
“The government of the day did not care what happened to Black
orphans,” he said. “When we look at the system – how did the system
fail us, so that this abuse continued and this neglect?”
When the terms of reference for the inquiry
were announced at an African-Nova Scotian church in Upper
Hammonds Plains in June, two drummers using traditional
instruments welcomed attendees. Audience members included abuse
survivors, and Black and white provincial and municipal leaders.
The event included a long-awaited formal apology from the Home’s
board.
Later, former residents, representatives of the Home and others
joined in song while a healing circle of lit candles burned toward a
better future.
(continued from page 33)
program is currently working on putting together a Program
Manual to focus on case management and protocols.
Several staff members have graciously volunteered to be part
of a working group committee to tackle this important task.
I’m very excited to be working on the Program Manual and
clearly define protocol in Family Group Conference, as we
are the leaders in the province in this area. The manual will
be the first of its kind in the province.
Family Group Conference is a journey we take alongside
the families we work with and make every effort to provide
opportunities so they may be empowered to plan for their
family and children. Each family is unique and each has
its own special ways of doing things. Therefore, it is to
be expected that each family group conference would be
different, as it upholds and respects the dignity of each
family. Both family group conference coordinators strongly
believe in Family Group Conferencing and work very hard
to ensure the program’s success.
For further information or if you have questions about the
Family Group Conference process, please feel free to contact
Kristen Basque, Supervisor of FGC, Mi’kmaq Family and
Children’s Services, at 1 800 263 8400.
Mi’kmaw Legal Support Network
The Mi’kmaw Legal Support Network (MLSN) is a justice support
system for Aboriginal people who are involved in the criminal
justice system in Nova Scotia.
The concept of a culturally sensitive approach to justice
support programs came to the forefront during the Marshall
Inquiry. Starting as a pilot project in the 1990s, the MLSN is
now a provincewide multi-service program, considered on the
leading edge of Indigenous customary law services in Canada.
It built on recommendations from the inquiry to bring Mi’kmaw
translators into the courtroom, develop sentencing circle
protocols, reintegrate offenders into communities, engage in
youth criminal justice initiatives and much more.
Core services are provided through the Mi’kmaq Court Worker
and Mi’kmaq Customary Law Programs. In recent years, MLSN
assumed responsibility for Mi’kmaq Victim Services and works
to empower victims, offenders and communities alike to better
understand justice processes and their rights, and to offer
dispute management opportunities rooted in Mi’kmaq customs.
“Since its inception, MLSN has always attempted to make a
non-Mi’kmaq system of justice better for Aboriginal people in
Nova Scotia,” says its website.
The Mi’kmaq Customary Law Program uses justice circles,
sentencing circles, healing circles and other traditional
methods of finding collective solutions for holding wrongdoers
accountable and promoting healing for all involved. Participants
can include the person who has been harmed, the person who
caused the harm, family and friends of each, other community
members, justice system representatives and other resource
professionals. They discuss what happened, why it happened,
the impact, what is needed to repair the harm, and ways to
decrease the chances of it happening again.
The MLSN’s Building a Bridge project also engages the
community in the release and reintegration process for
offenders in culturally meaningful ways. The Bringing Culture
Inside project, in partnership with the Nova Scotia Youth Facility
in Waterville, enhances access to Aboriginal/Mi’kmaq culture
for staff and young offenders. In partnership with Correctional
Services Nova Scotia, MLSN also hosts annual Mi’kmaq
cultural gatherings in three correctional facilities. It also
facilitates preparation of Gladue Reports in the provincial court
sentencing process.
Find out more about the Mi’kmaw Legal Support Network at
www.mlsn.ca and by calling 1 877 379 2042.
Fall 2015
37
Guest speaker Laraine Kaminsky (at left) with Loretta Manning of Cox & Palmer.
Law firm diversity dialogue
L
araine Kaminsky never expected to have a ‘virtual assistant’ but
now wouldn’t change a thing, as it works well for her hectic
travel circuit as a global diversity and inclusion strategist.
“She taught me to Skype,” she told a Halifax workshop on Leveraging
Generational Diversity, hosted September 10 by Cox & Palmer for
clients of the firm. “I probably wouldn’t have hired her initially if I’d
known she wasn’t going to move to Ottawa. But I’m hardly there either,
so why would my assistant need to be there? Her work speaks for itself.”
For the first time in Canadian history, the workplace is represented by
five generations of employees, a dynamic that creates greater potential
for challenges – and opportunities, noted Kaminsky, President and
CEO of Global LK. For example, larger accounting and financial
services firms are leading the way in developing the ‘agile workforce’,
building new flexibilities that benefit the employees and the business.
In the trend toward fewer fixed workstations in office settings, a
growing number of employees are working mainly from home, which
for some can make issues of child care more manageable.
It’s a sign that employers are becoming more creative and
accommodating, and it’s even happening in the relatively traditional
world of law firms, said Kaminsky, who has consulted with numerous
firms and the law societies in Ontario and B.C.
“If women have been leaving organizations and law firms ... why?” she
asked. “Given the changes in technology and the agile workplace, why
aren’t we more flexible in accommodating people who are different,
and also people who are temporarily different? There needn’t be so
many barriers.”
Kaminsky also led a series of workshops on unconscious bias and
cultural competence, for lawyers and managerial staff at each of Cox
38
The Society Record
& Palmer’s locations in the Atlantic region.
“The firm has embraced this in a
Marla Cranston
significant way. We’ve recognized it’s
Communications Officer
important to clients, to the profession
and to the community,” says Loretta
Manning, a partner who has led the firm’s diversity initiative.
Two years ago, Cox & Palmer became the region’s first (and only) firm
to join the Law Firm Diversity and Inclusion Network, a national
group that encourages a culture of diversity and inclusion within firms
and the broader legal profession. It’s also the region’s first business to
join Pride at Work Canada. The firm established its own diversity
committees regionally and in Halifax, adopted a diversity statement
to express its commitment, and connected with the Society’s Equity
& Access Office for advice.
The first big project was to conduct an internal diversity survey, to
find out “who we are and what do we look like? What are the areas for
improvement? Are we inclusive? ... The survey confirmed our initial
approach for internal education, so we knew we were on the right
track with the unconscious bias workshop series,” says Manning.
Cox & Palmer also reached out to other local firms with a diversity
lunch & learn, and has collaborated with the Immigrant Services
Association of Nova Scotia on several events, among other things.
The efforts are making a difference in recruitment, retention and
strengthening client relationships, says Manning.
“Take the leap, don’t be afraid to start a diversity initiative, no matter
how busy you are,” she says. “Start talking about it. There are a lot of
resources out there that can help. We’ve attracted great diverse talent
thanks to this initiative and we are looking forward to even more
success in the future.”
An enduring mystery
Why Nova Scotia’s first woman lawyer abandoned the legal profession
I
n October 1997, the
National Association of
Women and the Law
held its twelfth biennial
conference in Halifax, the
theme of which was “Access
to Justice for Women:
The Changing Face of
Inequality.” The event was
hosted by the Nova Scotia
Association of Women
and the Law, which took
advantage of the opportunity
to inaugurate the biennial
Frances
Fish
Women
Lawyers’
Achievement
Awards. The heroine of this initiative, which had originated with the
Nova Scotia Barristers’ Society, was a decidedly ironic choice; Frances
Fish, despite being the first woman called to the Bar of Nova Scotia,
barely practised law at all before abandoning Nova Scotia for good
and the practice of law for 15 years. One wonders what circumstances
combined to produce this result.
Who was Frances Fish and why did she come to Nova Scotia, where she
had neither relations nor roots? The middle of five sisters – two older
brothers died young – Fish was born in the shire town of Newcastle
(now merged in the city of Miramichi) in December 1888, the greatgranddaughter of Mainers who had emigrated to northeastern New
Brunswick after the War of 1812. Her father Charles Elijah Fish was
a sawmill owner, quarryman and building contractor who did not
have a head for business. Public service appealed more strongly to
“Charley” Fish, who went into politics at the municipal, provincial
and federal levels; over a period of 30 years he served in every capacity
from MLA and mayor to magistrate and MP.
The early death of both sons meant that the entire hope of the family
was vested in the five precocious and hardy daughters. Though
neither Mr. Fish nor his wife (née Willard) were university graduates,
the family believed in higher education aiming especially at the
professions; among Fish’s brothers were an engineer and a physician.
Frances and all her sisters were university educated. Three of them
took their undergraduate degrees at the University of New Brunswick
and one at the University of Manitoba. The youngest, Ruth Foster
Fish Davidson, became a pioneer woman lawyer in North Carolina.
In October 1913, Frances Fish became a student-at-law, the first
woman in New Brunswick to do so since Mabel French in 1902.
Given that she held a BA from the University of New Brunswick,
the preliminary examination was waived and studentship reduced
from four years to three.
Why law and why then?
Fish was in the second year
of her arts course at UNB
when Ms. French, New
Brunswick’s first woman
lawyer, became a barrister
in November 1907. French
left the province five years
later and, in the intervening
years, had had no successor.
The Campbellton lawyer
who accepted Fish as
a pupil, William Alder
Trueman, was a prominent
Methodist; no mainstream Christian church held more advanced
views on the rights of women
Barry Cahill
than the Methodists. Few lawyers
Independent scholar
in New Brunswick in 1913,
Methodist or otherwise, however,
would have been willing to take on a female student. Fish made no
effort to attend law school, though the University of King’s College
had been operating one in Saint John since 1892. For the first two
years of her studentship, she continued to teach at the grammar
school in Campbellton, which was against the spirit if not the letter
of the regulations in New Brunswick. Law studentship was supposed
to be full time, the student either working in her principal’s office or
attending law school.
Perhaps in order to save money, or because she was still uncertain
as to her future course, Fish deferred entering law school for two
years. Deciding against King’s College School of Law (now the UNB
Faculty of Law), she chose Dalhousie University. New Brunswick
law students had been attending Dalhousie Law School since its
foundation in 1883. Three Newcastle men had taken their degrees
there, including Lord Beaverbrook’s elder brother, the last as recently
as 1914; a fourth was in his final year when Fish entered. Though
Dalhousie Law School had never had a woman student, the university
had been graduating women since 1885.
It was probably decisive for Fish that in spring 1915, the Nova Scotia
Barristers’ Society had admitted its first woman articled clerk. ...
NOTE: This is an excerpt. Read the rest of this article in the History >
Portraits section of the Society’s website: nsbs.org/portraits.
BARRY CAHILL is writing a history of the Halifax Relief
Commission.
Fall 2015
39
volunteer
profile
Realistic steps to a better way of life
Ex-offenders and lawyers learn from each other through 7th Step Society
E
very second Tuesday in Halifax, a rather unusual self-help
group assembles to share some realistic thinking and positive
peer pressure. The Seventh (7th) Step Society of Nova Scotia
includes former offenders who are working hard to turn their lives
around, joined by lawyers, law students and faculty, and other
volunteers from a variety of backgrounds.
The conversations around the table are supportive, congenial and
confidential. The “street group” meetings are punctuated with
humour, despite some deeply personal subject matter: recovery from
addiction, the long-term impact of prison time, and efforts to change
ingrained habits of criminal behaviour. Some of the ex-offenders are
still under supervision.
“We’ve grown from less than a handful of participants to considering
a second and third street group, perhaps one in Dartmouth and
another in Kentville,” says Halifax defence lawyer Mark Knox
QC, considered one of the main ‘perpetrators’ behind the group’s
40
The Society Record
formation almost two years ago.
Marla Cranston
“Some of the local institutions have
Communications Officer
asked us to set up ‘inside groups’, and
we’re heavily involved in pursuing
that now, including Nova Institution for Women, where we went
recently to meet interested female inmates. Dorchester Minimum is
next, as is CNCF (Burnside).”
The ex-offenders inspire each other with their successes, but also
share hard lessons from the past. At a meeting on October 6, it was
Peter’s turn to take the “hot seat”. (Note: surname withheld from
publication at the group’s request.) Peter has been clean and sober
for 18 months but it’s been a long road and still has its challenges, he
said, recounting his harrowing story from the beginning.
“I got into drugs when I was 13,” he said. “The first time I used was
with my father. From then on, getting drunk and getting high was
my priority. It was just pretty natural, that was my escape.”
Peter left home at age 18 and got criminally active to pay for his
habits, quickly landing a three-year sentence for armed robbery: “I
got in there and thought it was university, right? To me, it was just
a rite of passage, something I had to do to get onto the next phase.”
Adjusting to life outside prison again was tricky, but it wasn’t long
before he was back in for a couple of bank robberies – this time netting
eight years. Despite a desire to change, his addictions worsened and
with every prison release, a new jail term soon followed. An effective
detox program finally helped him quit using drugs and alcohol.
“The ex-offenders inspire each other
with their successes, but also share
hard lessons from the past.”
“Now, my life is all about recovery,” he said. It’s a constant balance of
school, a full-time job and staying involved with his support groups.
He finds much inner strength from his volunteer work with 7th Step’s
“Educating Schools” program, speaking to groups of high school
students about his experience.
“It’s therapeutic. It allows me to put things in perspective, reminds
me where I’m at. It helps keep me in check, keeps me focused. That’s
been a huge part of my recovery process, to give back, if my story can
help somebody.”
As part of the hot seat, Peter fields tough questions from around the
table. Guest visitors at the meeting included the Hon. Judge Bill
Digby of the Nova Scotia Provincial and Family Courts, and Sean
Kelly, the province’s Director of Correctional Services. The Nova
Scotia group is endorsed by Correctional Services Canada, the Nova
Scotia Department of Justice, Halifax Regional Police and other
agencies and institutions.
Along with the schools program, the group does presentations and
panel discussions at churches, African Heritage Month and other
community events. Another outreach project involves visiting
halfway houses, to assist residents in successfully returning to the
community. A new project aims to facilitate employment and training
opportunities. Over two days in June, the group hosted the Annual
General Meeting for the National Seventh Step Society, including a
public forum. The organization originated in the U.S. and came to
Canada via B.C. and Alberta in the 1970s.
It’s easy to take a wrong turn in
life that has significant long-term
consequences, said Knox, adding
“those of us who have been lucky
can help those who haven’t – it’s
difficult to reintegrate, for many
reasons, including simply the
stigma of having a record.”
volunteer
profile
The October 6 meeting wrapped up with a celebratory cake, to
congratulate a former offender who recently graduated from Success
College and plans to resist any temptation to return to crime. “I’m
realizing now I have my freedom back, so I’m going to keep it,” he
said.
For more information about the 7th Step Society of Nova Scotia, see
www.knoxlaw.ca, email [email protected] or contact Mark Knox
QC at [email protected] or 902 422 0456.
The 7th Step Pledge
Knowing that my freedom depends on my thoughts and
actions, I hereby pledge:
1. to face and accept the truth about myself,
2. to maintain my freedom,
3. to become a useful member of society,
4. to help others as I am now being helped.
The 7 Steps to Freedom
1. Facing the truth about ourselves and the world
around us, we decided we needed to change.
2. Realizing that there is a power from which we can
gain strength, we decided to use that power.
3. Evaluating ourselves by taking an honest
self‑appraisal, we examined both our strengths and
our weaknesses.
4. Endeavoring to help ourselves overcome our
weaknesses, we enlisted the aid of that power to
help us concentrate on our strengths.
Brad Sarson, a lawyer with Nova Scotia Legal Aid for 18 years, joined
the group as a way of seeing people doing well and turning their lives
around: “In my job, you tend to see a lot of the same people over and
over. The work we do is a lot like putting Band-aids on a gushing
wound. It’s nice to see people making meaningful change in their
lives.”
5. Deciding that our FREEDOM is worth more than our
resentments, we are using that power to help free
us from those resentments.
Personal coach Lee Nicholas-Pattillo volunteers because she enjoys
meeting people and doing what she can to help: “It gives you hope
for humans, I can’t tell you how rewarding it is. It’s a learning and a
giving experience for everyone around the table.”
7. Maintaining our own FREEDOM, we pledge
ourselves to help others as we have been helped.
6. Observing that daily progress is necessary, we set
an attainable goal towards which we can work
each day.
Fall 2015
41
lians
TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM
Professional standards: A principled, proactive and proportionate approach to good practice
BY STACEY GERRARD, LIANS Counsel
In 2013, the Nova Scotia Barristers’ Society developed
a Strategic Framework to assist in the transformation of
regulation and governance to help the Society achieve
its purpose, vision and values. As part of the legal services
regulation project, the Society has been guided by a “3P”
approach: 1. Principled; 2. Proactive; and 3. Proportionate.
These concepts were considered new to the way the Society
regulated in 2013 but in fact, the Professional Standards
Committees were already using this approach.
registration system. Its work
ensures that the quality and
integrity of the system is
maintained while assisting
practitioners in the evolving
demands of practice. Some
of the standards include
certifying and reviewing of
title, access and conveyancing.
To assist lawyers with areas of risk and good practice
management, the Professional Standards Committees articulate
practice standards from existing regulatory obligations and the
standard of care of a reasonable lawyer practising in a specific
area. In other words, they articulate what already governs
the practice of law. When a new standard is drafted, this is a
proactive regulatory statement.
The Professional Standards
(Family Law) Committee
was approved by the Society
in 2011 in response to the number of complaints relating
to some aspects of family law practice. Articulating already
existing standards and making them easily accessible was
the Society’s proactive response to assist the membership
with providing quality client service. However, many of the
family law standards go beyond the scope of complaints
into such areas as conflicts of interest, client and lawyer
competence, dispute resolution, documentation of advice
and instruction, and working with unrepresented parties.
The standards themselves are principled in that they articulate
already existing case law, regulation and legislation on the
required standard of care necessary when practising law.
They form part of the required standard of care for lawyers in
Nova Scotia. These are not new rules for lawyers but rather,
standards to which lawyers are already expected to adhere.
Lastly, standards articulate
what a lawyer must do but
they do not prescribe how a
lawyer fulfils that requirement,
thereby making the standards
proportionate. How lawyers
fulfil their requirements can
depend on, for example,
geographic location, size of
firm and area of practice.
Practice notes to the standards
provide guidance with respect
to best practices.
Created in 2012, the Law Office Management Standards
Committee
supports
the
Society’s
protection
of the public mandate
“[The standards] form part of
through the development
of professional standards
the required standard of care for
for the management of law
offices in Nova Scotia. Some
lawyers in Nova Scotia. These are
of the approved standards
include record retention,
not new rules for lawyers but rather,
client service, timekeeping,
maintenance and backup of
standards to which lawyers are
electronic data, retention and
billing, and cloud computing.
already expected to adhere.”
The Society has constituted
four Professional Standards Committees in the areas of Real
Estate, Family Law, Criminal Law and Law Office Management.
Created in 1994, the Real Estate Standards Committee
has existed since before the enactment of Nova Scotia’s land
42
The Society Record
It
is
anticipated
that
professional
standards
currently being drafted by the Criminal Law Standards
Committee will be ready for the public consultation process
in the near future. These include areas such as guilty pleas,
withdrawal of counsel and disclosure.
How do the standards work in relation to lawyers’ risk and
practice management? Here is one example.
With the coming into force of the new Limitation of Actions
Act and the introduction of an ultimate limitation period, a
common question from practitioners is: “Can I throw my file
out after 15 years now?” The short answer is, “No.” The longer
answer is, “It depends.”
While the new legislation states that many claims can no longer
be brought 15 years from the day on which the act or omission
on which the claim is based occurred, it is not absolute. There
are a variety of exclusions from the legislation; for example, it
does not apply to real property matters. The Record Retention
Standard from the Law Office Management Committee as
approved by Council states, in part, that a lawyer must draft or
adopt an internal policy in writing for file closure, retention and
destruction with regard to:
•
•
•
•
legal and regulatory requirements;
clients’ needs and abilities;
the nature of the matter; and
limitation periods.
Professional standards are living
documents that evolve with
changes in the practice of law and
are intended to provide a clear
statement of the requirements as
well as helpful commentary on
best practices.
lians
Professional Standard Committees identify and recommend
to the Society amendments with regards to emerging practice
issues, and identify and provide current resources and tools
such as common law authorities and academic materials, to
assist members to practise in accordance with the standards
created. These resources are not intended to be exhaustive
or to preclude you from exercising your own professional
judgment.
You can find the Standards online at lians.ca/standards.
If you have any questions on these, or any other risk- or practicerelated matters, do not hesitate to contact the Risk and Practice
Management Program at [email protected] or call the Lawyers'
Insurance Association of Nova Scotia at 902 423 1300.
LIANS Mentorship Program
Many organizations, including LIANS, recognize that
mentoring is key to maintaining and enhancing
professionalism and lawyering skills. It can improve
relationships among lawyers, promote camaraderie, and help
address issues of stress and isolation faced by many lawyers.
Mentors receive the satisfaction of helping someone grow
and succeed in the practice of law, while mentees benefit
from the opportunity to receive regular encouragement
and support, explore new ideas and alternatives, and
develop new contacts and networking opportunities. Acting
as a mentor/mentee may also be part of your personal
professional development.
To participate, visit the LIANS website and find the
Mentorship Program Application Form. Once registered, you
can also access the Model Mentoring Activity Plan and a
Mentoring Guidelines Booklet.
find out more at:
www.lians.ca/services/mentorship-program.
Fall 2015
43
#TalkJustice includes community
voices in access to justice solutions
T
hose who work within the justice system are accustomed to
having the undivided attention of people whose lives often
hinge on their words. A judge handing down a sentence; a
lawyer explaining a legal strategy to a client; a police officer giving
orders to a suspect under arrest; a social worker explaining to a couple
why their child is being removed. They can all expect that the person
to whom they are speaking will give them full attention and accept
what they say with few questions. This makes courthouses, law
firms, legal aid offices and other justice system spaces mysterious and
intimidating to many members of the public. They are spaces where
justice system workers hold the positions of power and are used to
dictating proceedings.
#TalkJustice gives the Nova Scotia Barristers’ Society the opportunity
to flip this dynamic.
of a new conversation between the justice system and the public –
one that puts community voices at the centre.
The day’s events brought attention
to those community voices. In
Jane Willwerth
both the panel discussion and the
NSBS Information Specialist
workshop that followed, people
spoke candidly about their negative experiences with the justice system
– including several guest speakers who had gone through high-profile
youth court matters. Their feelings of frustration, disempowerment
and confusion echoed the findings in the community engagement
report. Despite the intensity of their feelings, it’s important to note
that participants did not feel hopeless: they were equally candid
about their ideas for improving access to justice and were eager to
share them.
Participant feedback fell into the following common themes, which
are guiding the Society’s future access to justice work:
• education: both for the public (on the law and the justice
•
•
•
•
This community outreach initiative is designed to allow the Society
to better understand the challenges equity-seeking and economically
disadvantaged communities face when going through the justice
system. The project began with a series of meetings and interviews
throughout the fall and winter of 2014-2015 with community
groups, individuals and justice system professionals. These generated
in-depth, frank discussions about barriers to justice for Nova Scotia’s
diverse communities. Excerpts from the discussions were compiled
in a 42-page report and posted daily to the Society’s social media
platforms throughout the spring and early summer. All Nova Scotians
were encouraged to join the discussion.
Nearly 100 people attended the May 22 launch of the #TalkJustice
report, including community members, judges, lawyers, police, social
workers, local media and Society staff and Council members. It took
place at the Mi’kmaw Native Friendship Centre in Halifax.
The day began with opening remarks from the Honourable Chief
Justice Michael MacDonald, Chief Justice of Nova Scotia, and
speakers from the Society including then-President Tilly Pillay QC,
Executive Director Darrel Pink and Equity & Access Officer Emma
Halpern. They all acknowledged the existence of an access to justice
crisis in Nova Scotia and stressed the importance of public input in
determining how to solve it. All four framed #TalkJustice as the start
44
The Society Record
system) and those working within the justice system (on
cultural competence);
collaboration: both among the various silos within
the justice system, and between the justice system and
community groups;
listening: continuing to actively seek out community voices
when designing access to justice initiatives;
transparency: ensuring the community is aware of how
#TalkJustice continues to inform the Society’s work; and
individual empowerment: promoting and taking seriously
ideas for small scale/high impact change from both the
justice system and the community.
Lawyers, judges, police officers and social workers are experts in the
rituals, rules and processes of the justice system, but they are not
experts in what it feels like to go through it. This perspective is crucial
in any efforts to successfully reform our justice system, and it is only
gained through regular consultation with those who have expertise –
in this case, the public.
The project’s feedback thus far requires all who work in Nova Scotia’s
justice system to confront some challenging questions on how to
provide more accessible services. How do we reconcile the need for
each of us to focus on “our piece” of access to justice with the clear
demand from the public to collaborate better across sectors? How do
we facilitate productive, ongoing, respectful discussion between the
public and justice sector participants such as the police, lawyers and
the courts?
Let us know what you think and stay tuned for the next phase of
#TalkJustice, now in development. As these conversations continue, please
join in by following talkjustice.ca and the Society’s Twitter feed (@
NSBS) and Facebook page (NSBarristers), or email us at talkjustice@
nsbs.org. Read the #TalkJustice report and find out more at nsbs.org/
public-interest/2015/04/lets-talkjustice.
Summation
From “let’s get tough” to
“let’s get it right”
Restorative justice offers a different understanding of what justice
can mean in Nova Scotia
T
he first time I heard about restorative justice, I was skeptical. I
was sitting in a first-year Criminal Law classroom at Dalhousie
and Professor Wade MacLauchlan was attempting to open
our minds by referencing how well it had worked in Aboriginal
settings. My reaction was that while it might work for “them”, it
wouldn’t work “us”.
In the 30 years since, I’ve come to learn that restorative justice not
only works outside an Aboriginal context, it also works outside a
criminal justice context.
the criminal justice system
has been a dumping ground
for social problems instead of
a forum for opening them up
to be resolved.
Danny Graham QC
Special Advisor, McInnes Cooper
To compound this, the more personal needs of victims – for
understanding, closure, restitution and a feeling of safety – too often
go unmet.
Change will only happen if we ask for it. As legal professionals, we
The basis for this analysis nonetheless starts with criminal justice. have a responsibility to shine a light on public misunderstandings
Prof. MacLauchlan’s message disrupted my sense of justice. Through about the shortcomings of the system they have entrusted to us.
the influences of family, community and media, I grew up believing Our frustration with wrongdoing understandably triggers a “let’s get
that jerks and crooks would
tough” reflex, but it is time that we
straighten up if they received swift
shifted to a “let’s get it right” reflex.
and unambiguous punishment –
Our tough predispositions have
“As legal professionals, we have
proportional to the harm they
been sacrificing opportunities
caused.
more satisfied victims, safer
a responsibility to shine a light on for
communities and reformed
Three years into practice, my
offenders for generations.
sense of justice was disrupted
public misunderstandings about
again when I joined Nova Scotia
Restorative
justice
offers
Legal Aid as a criminal lawyer.
considerable
promise
in
the shortcomings of the system
I was surprised to learn that
addressing these shortcomings
for many of my clients, their
because it keeps the focus on what
turbulent upbringings inoculated
is most effective, instead of what
they have entrusted to us.”
them from the tough measures I
is a right level of toughness. By
thought would work. By the time
carefully viewing every case and
they reached the criminal justice system most had been suspended, every relationship as unique, it is more possible through restorative
put down and/or slapped around so often that the punishments of justice to identify and begin to address the systemic – and often
probation and jail were just more of the same.
generational – social problems that brought about the harm in the
first place.
As they repeatedly cycled in and out of courts and jails, much of the
sting of court-imposed penalties wore off. Despite its commendable Research points to those harmed being the biggest winners in
balance of procedural checks and balances prior to sentencing, when a well-implemented restorative justice process – with victims
it comes to imposing penalties and ensuring harm was not repeated, consistently reporting substantially higher satisfaction rates than in
Fall 2015
45
the mainstream justice system. Recidivism and restitution rates are
also more favourable in well-run restorative justice programs. Like
any initiative, the keys to success are grounding the approach in core
values, good practice and constant evaluation.
The Nova Scotia Restorative Justice Program has grown substantially
in sophistication, scope and reputation since it began in the 1990s.
Our province is now recognized around the world as one of the
leading jurisdictions for restorative approaches. Justice leaders from
every continent have come here to learn from our success.
The leadership of Prof. Jennifer Llewellyn and many others has been
critical to this growth. Her greatest contribution has been in framing
restorative justice as being “about more than a different way of doing
justice. It is a different understanding of what justice requires.”
This foundation has opened the door to the applicability of restorative
approaches to contexts we had not imagined 20 years ago. By thinking
of conflict through the lens of broken relationships and not just broken
rules, Nova Scotia is unlocking unseen possibilities in the reconciliation
of relationships for individuals and groups of individuals.
Restorative justice is not a panacea, however. It does not offer
solutions for all people in all situations. It is more challenging in
situations where there are ongoing relationships amongst parties.
Careful attention needs to be taken to ensure participants don’t
sacrifice their rights to due process, or feel coerced into participation.
Justice requires us to balance the due process interests of someone
accused of causing harm with the need to find a resolution that
leaves us healthier and safer. In restorative justice, this balance is still
emerging and I welcome the debate that will continue to ensue.
Much progress has happened in the last two decades and I hope it
continues. If ever there was a culture that can navigate the intricacies
of these issues, Nova Scotia is it. At our best, we are a tolerant and
balanced people – not seduced by fancy new ideas or easy outs. We
understand both the frailties and shortcomings of human beings, and
the power of community to hold each other accountable.
Danny Graham QC was recognized by the Nova Scotia Government in
1998 for leading the development of the Nova Scotia Restorative Justice
Program. Since then he has also worked nationally and internationally to
advance restorative justice in other jurisdictions.
Nova Scotia is pioneering the applicability of restorative approaches
in schools, universities, workplaces, tribunals and reconciliation
processes because the principles of restorative justice are universal,
and our understanding of it is becoming more grounded.
NSLAP
Nova Scotia
Lawyers Assistance Program
Confidential Referral and Short Term
Counselling Program
Available to members of Nova Scotia’s legal profession, as
well as their staff and families.
Through our provider, Homewood Health short‑term
counselling and other resources are available for
managing personal, family and life events as well as
helping you take charge of your health and well-being.
46
The Society Record
Call in confidence from anywhere in Nova Scotia, 24
hours a day: 1 866 299 1299
1 866 398 9505 (en français) | 1 888 384 1152 (TTY)
Or log on to our website to access online wellness
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Fall 2015
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