Restoring Justice - Nova Scotia Barristers` Society
Transcription
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 1 VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA FINANCIAL RECOVERY AND LITIGATION SUPPORT PRACTICES AT BDO Our team of advisory professionals offers a wide range of services to address your clients’ needs. Financial Recovery Services BDO can help your clients get on the road to financial stability: • Insolvency and restructuring appointments, including personal bankruptcy, consumer proposals, and corporate reorganizations under BIA • Restructuring under CCAA • Business viability, operational and loan security reviews • Corporate wind ups • Private and court-appointed receiverships Mark S. Rosen, LLB, FCIRP Trustee and Partner Leonard M. Shaw, CA, CIRP, CFP, CAFM Trustee and Partner Jason G. Breeze, CIRP Trustee Michael J. Connor, CIRP Trustee Robert L. McCuaig, CMA, CIRP Trustee Brenda L. Wood, CIRP Trustee Kimberley A. Burke, CIRP Trustee Halifax: 902 425 3100 Sydney: 902 539 9850 Appointments are also held throughout mainland Nova Scotia and Cape Breton www.bdo.ca/financial-recovery Litigation Support Services BDO can analyze and simplify complicated financial issues related to your clients’ situation: • • • • • • Expert reports suitable for use in court, arbitration, mediation or for settlement discussions Business loss quantifications for litigious disputes Analysis of entrepreneurial guideline income for spousal and child support purposes Business interruption insurance loss claims Forensic accounting Business valuations Dan Jennings, CA, CBV, CF Partner Halifax: 902 444 5540 www.bdo.ca/litigation-support 2 The Society Record 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 the Society Record is published by the Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 (902) 422 1491 Copyright ©2015 Mailed under Canada Post publications agreement number 40069255 Return undeliverable Canadian addresses to: Publications 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 Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 [email protected] Graphic Design Lisa Neily [email protected] NOVA SCOTIA BARRISTERS’ SOCIETY nsbs.org page 22 page 10 Editor Marla Cranston [email protected] page 31 For ongoing Society news, follow us online (nsbs.org) : via InForum at nsbs.org/inForum on Twitter @NSBS on Facebook at NSBarristers on LinkedIn at NS Barristers’ Society Join the #TalkJustice conversation at talkjustice.tumblr.com or talkjustice.ca. Fall 2015 3 Gus Richardson is pleased to offer his services as an arbitrator, mediator and appellate lawyer in his new practice, Ad+Rem ADR Services. With over 20 years litigation experience at all levels of courts in Nova Scotia and Ontario, Gus is also a Small Claims Court adjudicator. Gus brings those skills to his practice as an arbitrator and mediator in labour, insurance, personal injury, commercial and condominium disputes. phone 902.422.6729 email [email protected] www.gusrichardson.com Certified Court Reporters for: Federal Court of Canada Trials Tax Court of Canada Trials Transportation Appeal Tribunal Hearings Nova Scotia Utility and Review Board Hearings Examinations For Discovery We provide daily transcripts upon request We have extensive overseas experience. We do not charge expenses for Toronto area discoveries. 4 The Society Record PROFESSIONAL Court REPORTING AND TRANSCRIPTION SERVICES Serving the legal community since 1983 Drake Recording Services Limited 1592 Oxford Street Halifax, Nova Scotia, B3H 3Z4 ph: 1-902-421-1913 fax: 1-902-422-6336 e-mail: [email protected] Call us Toll Free: 1-866-421-1913 Photo by Mike Dembeck/NSBS 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. 6 The Society Record 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 2 3 4 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 8 The Society Record 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 10 The Society Record 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 11 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: 12 The Society Record 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.” Celebrating 20 Years! For 20 years, Strum Consulting has provided innovative solutions and cost effective services to our Clients. In that time, we have added services and expanded our footprint. We continue to provide the following services to our Clients: Civil Engineering & Design Legal, topographic, and Construction Surveying Environmental Remediation & Clean-up Permitting & Approvals Land Development Services Our focus continues to be on you, the Client! Let us help you with your environmental, surveying, and engineering needs. t. 902.835.5560 (24/7) f. 902.835.5574 Railside, 1355 Bedford Highway Bedford, Nova Scotia, B4A 1C5 [email protected] www.strum.com Engineering ● Surveying ● Environmental 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). We’ve got you covered. Rob Hunt, CA, CIRP daniel Rozon, CA, CIRP ed macdonald, B COMM, CIRP peter wedlake, LLB, FCIRP When your client is in financial distress, timing is critical. Our team of Trustees in Nova Scotia has the experience to quickly assess the situation and provide comprehensive options. Our track record means reassurance for you and your clients. For timely turnaround strategies and financial restructuring solutions, reach out to Grant Thornton Limited today. Toll free 310 6060 Antigonish | Bridgewater | Dartmouth | Halifax | Kentville | New Glasgow Port Hawksbury | Sackville | Sydney | Truro | Windsor | Yarmouth www.grantThornton.ca © Trustee in bankruptcy. Grant Thornton Limited. A Canadian Member of Grant Thornton International Ltd 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 34 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 36 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. 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