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 complaints.<346>
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." <354>
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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