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Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-013-02

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-013-02
Last-Modified: 1997/01/29
Source: Department of Justice Canada

13.3.5 Complaint and Redress Mechanisms

In order for justice to be done and to be seen to be done,
there should be effective mechanisms for individuals to
voice complaints about treatment by justice system
officials. Access should be easy. Action to investigate
claims should be rapid. Redress, if appropriate, should be
made quickly. There should be significant involvement by
individuals from outside the alleged offending body to
assure impartiality. As well as addressing claims of serious
abuses of authority by officials of the criminal justice
system, complaint and redress mechanisms should also address
the "little injustices" that occur far more frequently than
serious conflicts and often create significant problems in
people's lives.

The Etherington report summarizes the literature on police
accountability and complaints measures.<341> There has been
considerable attention paid to this issue, and a number of
new procedures, including legislated ones in police
community relations, have been introduced in recent years.
Citing several reports in his review, Etherington recommends
that there should be no new procedures implemented until
those currently in effect are evaluated. <342>

Procedures for making complaints and for seeking redress
against lawyers have not received sufficient attention. A
focus group study on justice-related problems of minorities
prepared for the Department of Justice Canada revealed
negative perceptions of lawyers and concerns about
sensitivity to minority concerns.<343> In his summary,
Ethering on cites evidence "that complaints of incompetence,
negligence, abuse or rude and unprofessional conduct by
lawyers are common among members of minority groups, but
that minority complaints often do not make appropriate
disciplinary bodies aware of their complaints due to lack of
knowledge about complaint procedures or fears that they are
too complicated and burdensome to pursue."<344> There are
claims that lawyers generally lack the knowledge and skills
to properly represent minority clients.<345> Also the
selfregulating aspect of the legal profession may lead to a
perception by the public that complaints against lawyers-
are not fairly dealt with satisfactorily by other lawyers.

The fact that disciplinary hearings by law societies are
normally held "in camera" is also a serious problems in
terms of public confidence.

In the longer term, the issues relating to sensitivity and
capacity to properly represent members of minority groups
may be alleviated if more minority group members enter the
legal profession. In the shorter term, professional training
in ethnocultural issues and cultural sensitivity training
should be encouraged and sponsored by law societies and bar
associations. The Access to Remedies report cited in
Etherington recommends initiating studies on the perceptions
of minority groups about how well they are treated by the
practising bar, and their knowledge of, and confidence in,
existing procedures of law societies for addressing

The Etherington report makes several specific
recommendations, summarizing from other reports. Open
hearings should be the rule, rather than camera disciplinary
proceedings. The benefits in terms of public confidence in
the legal profession and ultimately in the justice system,
that would accrue from open hearings would outweigh the
hardships and embarrassment of subsequently vindicated
lawyers. 347 There should be a study on the extent to which
existing or newly developed formal policies of open hearings
are being undermined by exceptions to the policies.<348>

Law societies should become involved in public education
campaigns to inform minority communities about the codes of
proper professional conduct for lawyers, about their rights
to lodge complaints, and the complaint mechanisms that are
available.<349> The law societies should consider using the
knowledge gained by public legal information organizations
in developing culturally sensitive and appropriate delivery
vehicles for this purpose.

Finally, some oversight mechanism should be developed to
review cases where complainants are not happy with the
outcomes of disciplinary hearings.<350> Many of the same
concerns arise with respect to the judiciary as with the
bar. The Etherington report shows that there is some concern
that the formal mechanisms for pursuing complaints against
provincial and federal judges are not well known, and may be
perceived as remote and unresponsive.<351> In addition, lack
of sufficient remedial powers and lack of lay public
representation on compliant bodies may impede the
accessibility and the efficacy of complaint bodies.<352>

The hearings of the Canadian Judicial Council are normally
held in camera, except in very unusual circumstances such as
the Marshall Inquiry. Some provincial jurisdictions require
public disciplinary hearings only if the complaints are
significant and serious or are in the public interest.353
There is considerable variation in practices. The Access to
Remedies report recommends that all complaints hearings
should be "presumptively open, particularly when they
involve allegations of racist commentary or discrimination."

The Etherington report also recommends that codes of
judicial conduct be developed for all levels of the
judiciary with the advice and involvement of minority
communities.<355> Further, judicial councils should be
involved in public information campaigns to inform minority
communities about the codes of proper conduct for judges,
and about procedures for lodging complaints. Finally, as
discussed above, cross-cultural sensitization programs
should be reviewed and, where appropriate, strengthened.

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