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Judging 101

Cover Story
|Written By Kirk Makin
Judging 101

The benefits of judicial foreign aid are rarely measurable in concrete terms. But, for Ontario Court of Appeal Justice Marc Rosenberg — a workhorse in the movement to help developing nations enhance their justice systems — a dramatic exception to that rule came during a working foray to China a couple of years ago. Rosenberg was part of a Canadian entourage helping to draft rules for excluding unreliable evidence — coerced confessions, in particular. Overnight, a furor erupted over a Chinese convict who had confessed a decade earlier to murdering his wife, notwithstanding the absence of a body.

“Suddenly, his wife showed up — alive,” Rosenberg recalled. Humiliated, authorities hurriedly released the man from prison.

The incident lent added momentum to the work of the judicial group. Rosenberg would later learn the rate of executions carried out in China began dropping after the exclusionary rule was embraced by lower courts. “I can’t really say that our project was responsible for more than a small bit of that change, but we have been told that it was helpful,” he says. “When you are involved in something like that, it’s very gratifying.”

A second member of that entourage to China, Supreme Court of Canada Chief Justice Beverley McLachlin, says she was thrilled a few weeks ago to hear the new rules have been given the imprimatur of China’s highest court. “Just think of the many millions of people in China who may be affected by those changes,” she says.

THE JUDGE-TO-JUDGE CONNECTION

More than 20 countries now see Canada as a chief architect of their legal stability and reform. From Peru, Vietnam, and Chile, to Jamaica and Ghana, a shifting cast of approximately 50 to 75 Canadian judges has been offering expertise in judicial training, court administration, ethics, judgment writing, and legal reform. Their central mission: to strengthen the global rule of law in ways that will sustain long after they return home.

“There is a real attraction to the judge-to-judge connection,” says George Thomson, senior director of international programs at the Ottawa-based National Judicial Institute. “It is an enormous high to see them take the model we teach, adapt it, and then teach their judges a skill they need in that country.”

Judicial aid abroad got started in the 1990s with a smattering of Canadian judges who offered their services through organizations such as Human Rights Watch, the Commonwealth Judicial Education Institute, or the Canadian Institute for the Administration of Justice. Jurists such as Alberta Chief Justice Catherine Fraser and former Supreme Court of Canada judge Claire L’Heureux-Dube — a dymamic, one-woman, global force for human rights and judicial independence abroad — travelled extensively, providing advice and encouragement to law reformers. In a watershed moment in 2004, judges from 80 countries converged on Ottawa for a conference given by the International Organization for Judicial Training. Guests saw first-hand the new teaching methods Canadian judges were developing, and requests for aid began to come in.

The NJI launched its first project in the Philippines soon afterward. Citizens and businesses had lost faith in a court system paralyzed by delay, and the NJI assessment team recognized how vital accessibility was to a broader belief in the country’s court system. “It was taking about 19 years to get a trial,” Thomson recalls. “It had become an impossible system that gave power to those who could wait it out. So, the niche area we picked to help them with was judicial dispute resolution.”

In recent years, the bulk of NJI projects have been carried out under the auspices of the federal Department of Foreign Affairs, Trade and Development and the Office of the Commissioner for Federal Judicial Affairs. “Our mantra is that we are judge-led and judge-focused,” says Brian Lennox, NJI’s executive director.

“We work with judges on an agreed project with agreed objectives. Our contacts are always judges and courts; not governments.”

Most projects boil down to advising foreign judiciaries how to create and consolidate judicial institutes and developing judicial training programs. Specific projects tend to focus on skills training, judicial ethics, the social context of law, and, to a lesser extent, substantive legal reforms.

The Jamaica project is a good illustration. Led by a very enthusiastic chief justice, Zaila McCalla, the country’s judiciary were interested in incorporating oral judgments into a court system that relied exclusively on the written form. In a series of trips, Canadian judges helped their Jamaican counterparts understand the virtues and efficiencies of delivering oral judgments and prepared a series of video presentations that could be used to educate the entire judiciary. “We partner with host countries and build their capacity to design and deliver education,” says Thomson. “We don’t just go in and deliver it ourselves.”

NJI has also set up chat lines on judicial topics that feature Canadian judges and academics as moderators. “We create a problem and then, over a one-month period, people work on that problem, contribute, and get feedback,” says Thomson.

Each project is animated by one theory — by sharing advanced judicial teaching methods, a pedagogical infrastructure can take root and thrive. Then, as more and more judges in a host country are exposed to Canadian-inspired training, the rule of law takes firmer root, enhancing fairness of their court systems and promoting human rights. “The rule of law is basic to economic development in these parts of the world,” says McLachlin. “This is a way that Canada can help them get on their feet and establish a court system that will support democracy and freedom.”

NOT JUDICIAL TOURISM

The NJI launched its international aid commitment in 2003 under Thomson’s leadership. A massive list of volunteers had to be winnowed down to those willing to train in NJI’s pedagogical methods and toil in uncertain conditions and foreign cultures on their own time. “This is not judicial tourism,” says Lennox, a former chief justice of the Ontario Court of Justice. “Judges travel on odd schedules and work as soon as they hit the ground; often from 7:30 a.m. until 8:30 or 9 p.m.”

NJI teaching methods slant toward the use of audio-visual aides and “experiential learning.” Students actively participate in discussion modules and report their conclusions to a “plenary” of the entire class. “The worst way of learning is just to receive a lecture,” says Lennox. “Instead, you use the experience of other participants as part of the training. No one can hide. Everyone is forced to share experiences. That makes it a richer experience.”

The federal government’s funding priorities have increasingly mandated aid programs focus on commercial and economic aspects of law. However, “social context” training remains a CIDA requirement for any project, meaning all relevant forms of disadvantage — whether based in gender inequity, race, religion, poverty, or disability — are addressed in each project.

Both goals figured strongly in the NJI’s Vietnam project. Rosenberg and Alberta Court of Queen’s Bench Justice Adele Kent were part of a group that helped Vietnamese judges design teaching programs spanning economic issues, court administration, and social context. “Judges often don’t really understand what we are talking about when we talk about gender equality,” says Kent. “So, we talk about how gender equality developed in Canada and we discuss areas where Canada still faces great challenges, such as domestic abuse.”

Eventually, the Canadians left the Vietnamese judges to refine what they had learned in training courses. They returned months later to review their students’ “homework,” noting with great satisfaction how their advice and techniques had gelled. “Although Vietnam was still a Communist, one-party state, the judges were very open to modern methods of judicial education,” says Rosenberg. “At the end, we left them with something they can deliver time and again.”

On another project Thomson, L’Heureux-Dube, and Fraser went to Nepal to persuade judges to import badly needed reform to the treatment of rape complainants. “If a woman claimed to have been raped, they might lock her up to protect her. And then the trial took forever,” says Thomson. The group was taken to a shelter with 150 young girls who had been kidnapped and forced to work in brothels in India. After being repatriated by a social agency, the victims’ families refused to accept them back. Equally appalling, says Thomson, the kidnappers were not being punished. “Judges in Nepal get paid very badly,” he explains. “As a result, the level of corruption is very high. So these guys in the sex trade were getting charged and then acquitted. Teaching equality in that context is hard.”

DIRECT LINKS TO SUSTAINABLE DEVELOPMENT

Typically, an NJI project begins with an assessment of the host country conducted by experts such as Thomson or Brenda Cupper, an NJI administrator who has spent three decades living and working in developing countries. If what they are looking for meshes with what NJI can provide, funding is sought. Cupper’s vast experience abroad has led her to one overriding conclusion: There is a direct link between the rule of law and sustainable development. “To make a difference, we have to start with fundamentals — and the biggest fundamental is the rule of law,” she says. “By improving the quality of judicial education, we can improve the quality of justice in a country.”

The Canadian approach is respectful and, according to Lennox, “non-dogmatic. We do not try to recreate the NJI in the host country. We are not trying to recreate the Canadian judiciary. We don’t arrive in a country, and say: ‘This is the way it’s done.’”

In the Ghanaian project, the implementation of this approach meant working with local judges on an area they perceived as a high priority — oil and gas law. In an ongoing Ukrainian project, the host country’s judiciary wanted to focus on economic and commercial law. With Canadian aid, their judicial training institute is currently developing 15 courses, including statutory interpretation, courtroom management, and pretrial settlements.

Candour is another pillar of the Canadian approach. Many developing countries have civil systems but want to move to a more adversarial model. Heavily reliant on written records and statements, judges in these systems have little or no experience in viva voce testimony, direct examination, and cross-examination.

Frequently, they have little experience in vetting the admissibility of evidence.

Canadian judges take pains not to paint an unduly rosy picture, says Rosenberg. Host judges are given a sense of the failures and costs of the adversarial system, such as lengthy pretrial motions over admissible evidence. “It’s important to tell that in our system, many people are unrepresented or under-represented,” he says. “It is an extremely expensive system and it’s highly dependent on guilty pleas. And plea bargaining can lead to mistakes.”

During a project for the Judicial Studies Centre of the Americas, Rosenberg recalls shocking an audience of South American judges by revealing, notwithstanding its highly evolved adversarial system, Canada has a sorry experience in wrongful convictions. He told them faulty eyewitness testimony, inadequate expert witnesses, and false confessions have all led to unjust convictions, and innocent people have pleaded guilty rather than expose themselves to the uncertain consequences of a criminal trial. “For some of them, this is news,” says Rosenberg. “So, before they buy into our system, they have to make sure that they know what they are getting into.”

Some of the most successful aid projects involve visits to Canada by judges from the host country. In the case of the Chinese project, a group of visiting judges were treated to a mock criminal trial. Actual judges, prosecutors, and defence counsel played starring roles, and the visiting judges were encouraged to interrupt with questions.

NOTHING’S PERFECT

Kent, who specializes in judicial ethics, says what Canadian judges see abroad can be every bit as revealing as what they teach their hosts. In one South American country, for example, she recalls a young judge approaching her after she led a talk about the evils of accepting bribes. “He said: ‘I have a family and I have to move a lot from place to place — how am I supposed to support my family?’”

The dangerous circumstances foreign judges operate in can also be sobering. Many are underpaid, lack true judicial independence, or may face danger. While Canadian aid administrators take pains to avoid any situation that could present danger to Canadian judges, “our judges can obviously be high-risk targets.” Less dramatically, there are diseases and even chaotic traffic conditions to worry about. For example, two judges working on the Philippines project contracted dengue fever. “One of them recovered quickly, but the other was sick for some period of time,” says Thomson.

While Cupper and her staff at NJI typically reach out to their contacts in other countries to learn the realpolitik of their security, culture, food, and general environment, some scenarios nonetheless present a certain amount of risk. In one such project, a group of senior judges in Pakistan — many of whom had just been released from house arrest — asked the NJI for help with its judicial institute. Kent, one of those sent to provide aid, had to live in a CIDA compound in Islamabad. Her entourage later travelled to the troubled city of Peshawar in a bombproof car. “Two months later, they blew up a hotel just down the road from where we had stayed in Islamabad,” she says. “I wouldn’t have missed the experience for the world, but I’m not sure I would do it again.”

To Rosenberg, however, the greatest worry for judges venturing abroad is offering aid that proves unsuited to the needs of a host country. He views it as vital judges guard against conveying a bloated notion that every element of their own system is superior — and ought to be emulated — by a host nation.

One of the most enduring lessons Rosenberg learned from the Chinese project occurred at a meeting toward the end of the mission, when a member of the Canadian contingent issued a remark that evidently struck a sour note with one of the host judges, he recalls. The judge — one of the most senior, dignified members of the host delegation — looked up and said: “Don’t forget: we have been doing this for 4,000 years.” The uncomfortable moment passed quickly, but Rosenberg chuckles at the memory: “It was a great moment — a reminder that there is more than one way to see things,” he says.

McLachlin had her own moment of revelation while she was in China, when a Chinese judge took her aside for a chat. “He said: ‘We take the long view of things. Decades, even hundreds of years, is not very much time. We are at the beginning of building our judicial system.’” The memory has stayed with her, says the chief justice. “It made me realize that anything we can do to strengthen their courts may have long-term effects which we may not even dream of.”


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