Consultation Reports

INDEX
- Introduction
- Issues and Recommendations
- Summary of Recommendations

The "Academic Sector" represented in the Summit on Justice process is a highly diverse group of post-secondary educational institutions, including Alberta's Universities, Colleges, and First Nations Colleges. These institutions are connected with the administration of justice in Alberta in three ways: First, these institutions provide practical, professional, and theoretical instruction to students respecting a full array of justice issues. Second, researchers at these institutions investigate justice issues, and, through publication, provide explanations, interpretations, analyses, and recommendations concerning justice issues. Third, through public service activities such as media interviews and commentaries and the holding of public seminars, workshops, and courses, researchers and instructors contribute to the public's critical understanding of justice issues.

The extraordinary relevance of the Academic Sector to the administration of justice may not always be fully appreciated. The teaching and research in Faculties of Law and in Criminology units in Departments of Sociology are obviously relevant to the administration of justice. Police Science and Correctional Training programs have similar obvious relevance. Teaching and research in Departments of Philosophy, Political Science, and History and Classics may also explore justice issues. Legal issues are also explored in Faculties of Business. Work done in Departments of Psychology, and research in Faculties of Science (e.g. respecting DNA typing) may also be of great importance to the justice community. Faculties of Medicine, particularly through their clinical interactions with victims of crime, contribute to our understanding of justice issues. Schools of Native Studies and Women's Studies Programs assist us in understanding the ways in which legal rules may have adverse impacts on certain groups within the broader community. There are very few teaching and research areas in the Academic Sector that have no connection, direct or indirect, with the administration of justice.

The richness of the Academic Sector's relationship with the administration of justice makes it difficult to set out a particular list of issues or recommendations. Within the wide variety of disciplines, approaches, and research focuses, there is no set of common themes. The issues and recommendations discussed below represent only a small number of the justice concerns of the Academic Sector, and are restricted to matters that peculiarly concern the Academic Sector and its relationship with the Provincial Government.

1. Public Education

(a) the issues

Comments at public forums, letters to the editor, media interviews, articles in newspapers and magazines, politicians' speeches, and student comments in classes give evidence of widespread public misunderstandings of the administration of justice in Alberta. These misunderstandings undoubtedly contribute to public frustration with some justice processes.

To address the misunderstandings, public education is required. The educational program would deal with the basic components of the system of justice in Canada and Alberta: the division of legislative powers and systems of government; the relationship of legislation and the Canadian Charter of Rights and Freedoms (the "Charter"); the system of courts; the role of judges in a federal, "bill of rights" democracy; the role of lawyers in the protection of rights and freedoms; the roles of other players in the administration of justice, including the police and correctional services; the basic sets of legal rules (e.g. criminal law, "tort" law (including the law of negligence), property law, contract law, corporate law, "administrative" law, the rules governing procedure in civil trials and criminal trials, the rules of evidence). The educators best-placed to deliver educational programs respecting the justice system are those within the post-secondary system, since they have the requisite specialized knowledge.

At least three educational platforms are required. The first platform would be for the most easily targeted group, high school students. A two-term (one year) secondary level credit course could be developed. A curriculum could be produced, fairly easily, by Academic Sector representatives, for both traditional and distance education delivery.

The second platform would be for the least accessible group, adults outside the educational system. Two main hurdles must be overcome for this group incentive to learn, and time. Educational programs would have to be delivered in small, modular units, organized around some topics of general interest e.g. gun control, prisons and parole, the young offender system, suing and being sued for negligence, how to collect a debt, the stages of criminal procedure, victims' rights in the criminal justice system. These modules would have to be capable of delivery in one evening, two or three hour sessions. To encourage people to attend, political support would be required. The sessions could be sponsored (or better, hosted) by a local M.L.A., or by some other office holder (e.g. an M.P. or mayor).

The third platform would be for M.L.A.s themselves. While some legislatures are replete with the legally-trained, in Alberta, there are few lawyer M.L.A.s. There is currently a legal studies program for senior civil servants. Such a program could also be offered to M.L.A.s. This suggestion entails no disrespect for M.L.A.s. Many have had successful careers outside of politics and in politics. The expertise they may have gained, however, is not necessarily legal expertise. Since M.L.A.s have as a primary job the creation of law, it would be useful to ensure that they have a good grasp of the basic structure of the Alberta legal system. Again, a course of studies could be devised by Academic Sector representatives. It would, again, be in modular form, so that it could be delivered over either a relatively short concentrated period, or over a more prolonged, less concentrated set of sessions.

While Academic Sector representatives are no doubt ready and able to take on the challenges of assisting with the legal education of Albertans outside of their own institutions, they may not be willing. Members of the Academic Sector, like other Albertans, are already very busy doing more with less, and their spirit of volunteerism is taxed to the full within their institutions and through the public service work they already provide. Moreover, their institutions lack the resources to provide significant financial support for public education initiatives.

To ensure the cooperation of the Academic Sector, funding for public education must be provided. This funding would support the expenditure of time by instructors to produce course materials, over and above the time they spend on their jobs, the capital required to produce the educational product (computer time and depreciation, supplies, office expenses), and clerical expenses. The Academic Sector could not be expected to cooperate if cooperation would mean further work without pay, and further financial burdens on cash-strapped institutions.

As important as funding would be support for public justice education by the Ministers of Education and Advanced Education. A clear signal would have to be sent, particularly to the Universities, that this public education is an extremely important social contribution, and is worthy of academic credit. The Ministers cannot and should not attempt to dictate measures of academic value, which at the Universities are assessed through peer-reviewed processes, but the Ministers can provide reminders of value, and could provide letters of support to Faculty members who do public justice education work.

(b) recommendations


1.1 The Provincial Government should support public education in the administration of justice at three levels:


(i) the secondary school level;


(ii) the adult non-academic level; and


(iii) the M.L.A. level.


1.2 The Provincial Government should draw on the Academic Sector to design, and, in certain cases, deliver this education.


1.3 The Provincial Government should support the Academic Sector's contribution to public education through appropriate funding of the public education initiative.

2. Institutional Partnerships

(a) issues

Academic Sector institutions are independent of government and must remain and be perceived to remain independent of government. Nonetheless, cooperation may occur between independent bodies.

The Academic Sector is a repository of specialized justice knowledge. The Provincial Government has frequent need for such knowledge, or at least for objective, informed advice respecting justice matters. This is not to deny the value or impugn the competence of the Department of Justice, but there are instances in which the government lacks the in-house specialized, independent advice that it might need. The Provincial Government should enter into a closer partnership with the Academic Sector respecting justice matters. This partnership should take place on three levels.

First, the government should sponsor the creation of an interdisciplinary justice advisory committee. The panel would consider justice policy initiatives proposed by the government, and offer advice. Membership on this committee would be drawn from various Academic Sector research areas and from justice system practitioners. The total panel of members could be large, but the whole panel need not always meet. Only those panelists with expertise in the particular areas touched on by initiatives in question would be brought together to deal with those initiatives. It should be noted that the composition of the Working Committee for the Summit on Justice provides an example of the type of broad-based membership for a group that could usefully discuss and provide recommendations respecting justice issues.

Second, the government should sponsor the creation of an independent, ongoing research body dedicated to issues in the administration of criminal justice in Alberta. This organization would be analogous to the Alberta Law Reform Institute. It would differ from the Alberta Law Reform Institute by focussing on issues related to the administration of criminal justice, and by being an interdisciplinary research unit, as opposed to a primarily legal research unit. This organization would be set up to have the staff and resources to conduct sustained research into policy initiatives of interest to the Alberta justice community. The criminal law is, of course, a subject within Parliamentary legislative competence, but this organization could work on issues of criminal justice administration within provincial competence, on issues concerning the application of criminal justice in Alberta, or on criminal justice issues of interest to Albertans (which, through cooperative federalism and Ministerial meetings, can influence federal policy).

Third, the Provincial Government should support a broad, well-defined secondment program, whereby members of the Academic Sector could, for more-or-less short periods of time, be attached to governmental departments close to their areas of expertise. This would give Academic Sector members the benefit of seeing how the governmental side of the administration of justice actually operates, and could provide material for research; and this would give the government the direct benefit of the Academic Sector members' expertise. Secondments do occur now, most notably between the Department of Justice and the Faculty of Law (at least at the University of Alberta). Secondments, however, need not be limited to the legal area.

(b) recommendations


2.1 The Provincial Government should draw on the resources of the Academic Sector by entering into appropriate partnerships with members of the Academic Sector.


2.2 The Provincial Government should sponsor three types of partnership:


(i) an interdisciplinary justice advisory body;


(ii) an interdisciplinary criminal justice research body;


(iii) a broadened and more vigorous secondment program.

3. Funding

(a) issues

In this Summit, in other Summits, and outside of Summits, the Provincial Government has received pleas for more funding. The Academic Sector must add its plea to that chorus.

Provincial funding for post-secondary education per full time enrollment student has dropped at least 55% since 1980. Staff have been lost. Costs of education have been transferred to students. Deep cuts have been made to spending on infrastructure, libraries, and equipment. Staff have increasingly large workloads.

How is this relevant to a Summit on Justice? Members of the Academic Sector contribute to the study, improvement, understanding, and public appreciation of the administration of justice in Alberta. To the extent that we are stopped from doing our jobs, to that extent the administration of justice in Alberta is impaired. To the extent that we are stopped from suggesting innovations and policy options, to that extent the development of our administration of justice is stunted. Three types of funding initiatives from the Provincial Government are urgently needed.

First, the government should increase its use of commissioned or grant-funded research. Again, the government should avail itself of the expertise in the Academic Sector. Particular projects and grants could be advertised, and applications for funding could be reviewed by a joint government/academic peer body.

Second, the government should develop funding envelopes for administration of justice issues, parallel to the funding envelopes developed federally and provincially for science and technology research. With input from the Academic Sector, criteria could be established for eligible research projects. A maximum dollar amount grant pool would be established for each year. Applications for funding would be judged by an academic peer body. These envelopes could encourage applications by individual researchers, teams of single-discipline researchers, or interdisciplinary teams, concerning issues of both basic research (e.g. respecting the moral principles of sentencing) and applied research (e.g. the success of intermittent sentences, or differences to crime rates made by community policing, as opposed to military-style policing). It should be noted that an important limitation of the current set of provincial research funding envelopes is that they tend, practically, to exclude many researchers who work in the area of the administration of criminal justice, particularly those who do basic research. New envelopes would remove this inequity.

Third, and perhaps most importantly, the government should increase the base operating grant for post-secondary institutions. The Academic Sector is currently working under terrific strain. Our projected revenues are insufficient to meet our projected expenses. We cannot transfer the shortfall to our students -- not only have they generally reached the limit of their resources, it is not fair to make them bear ever-greater financial burdens. Even modest increases to our base funding would make room for hiring needed staff, reducing class size, improving the quality of student and staff academic life, for repairing aging buildings, for purchasing needed equipment, and for rebuilding our declining libraries. It has been remarked, even on the Ministerial level, that we can't solve problems by throwing money at them, and that if money is provided, reform will stop. We have reformed. We have tightened our belts. We have cut the fat. We are doing more with less. We are starving. And if we do not receive increased funding, our excellent post- secondary system will wither into mediocrity -- and gravely restrict its ability to contribute to the administration of justice in Alberta.

(b) recommendations


3.1 The Provincial Government should increase its use of commissioned and grant-funded research.


3.2 The Provincial Government should create an envelope of grant funding for research respecting justice issues.


3.3 The Provincial Government should increase the base operating grant for post-secondary institutions.

4. Attitude

(a) issues

Justice issues tend to be emotional issues. Many people feel very strongly about the rights of accused persons, the rights of victims of crime, the right to a peaceful and safe community, the right to be compensated for injuries, the right to access to a child. Politicians have and are entitled to have their views about the operations of the justice system, just like any other citizens. But, from the standpoint of the Academic Sector, it would be better if members of government were to temper their emotions, to display greater objectivity, not to prejudge difficult issues, not to oversimplify, and not to encourage erroneous views about the system of justice and persons involved with it. Laws, of course, can be changed (more or less easily, depending on constitutional status). Nothing precludes reasoned debate about the justice system. Government, though, owes a duty to the public not to undermine the administration of justice into the province, not to be a vehicle whereby the administration of justice is brought into disrepute.

The attitudinal relation of government to the administration of justice is important to the Academic Sector, since the government's attitude will determine whether it will listen to any research or recommendations flowing from the Academic Sector, whether it will involve the Academic Sector in public education, whether it will move to better partnerships with the Academic Sector, and whether it will see fit to provide adequate funding for research into justice issues.

There are at least two areas in which government members' attitudes have caused concern to many members of the Academic Sector -- oversimplifications and attacks on the Charter and fundamental rights and freedoms.

(i) Oversimplifications

No doubt there are simple questions and simple answers about certain aspects of the justice system. There are many more aspects of the justice system that are extremely complex interweavings of legal rules, administrative policies, and practical realities. Understanding the justice system properly is the work of many life times. This is why we have University researchers who specialize in Criminology and Law, for example. Even within the academic community, where researchers have the privilege of pursuing studies into the law, research tends to concern only relatively small areas of legal reality, since no one researcher can properly understand the whole system. For example, it is very difficult to determine the factors that lead a person to commit a particular type of crime -- how much rests with individual responsibility, and how much rests with biological or physiological conditions, or the conditions in which the person was raised, or the socio-economic conditions of his or her community, or the cultural conditions of that community. Again, it is very difficult to decide on appropriate punishments for those who are found guilty of crimes -- some punishments may tend to make offenders more dangerous than they were before, and make society less safe rather than safer; some punishments seem right, until we determine that the person punished was really innocent.

With respect to particular legal rules or procedures, it must be remembered that many of our rules are the work of some centuries' development. They are, one hopes, ever-closer approximations to justice, modified slowly to account for particular situations. We should begin with the presumption that our current rules are good ones, and not change them, unless we have good reasons to do so and we have grounds to believe that the changes we would make would not cause more difficulties than the current rules. It must also be remembered that our legal rules are to apply across a wide variety of circumstances. They look back to the experience that created them, and they look forward to the cases that will be brought under them. In any particular case, the application of a rule might seem unjust. That does not mean that the rule must be changed. The long-term consequences of the rule must be considered. This is one reason (not the only one) why we have the presumption of innocence, which requires the prosecution to prove its case against the accused beyond a reasonable doubt. If that standard were lowered, so that a particular "morally guilty" accused could be convicted, it could mean that, as the lower standard were applied, morally innocent accuseds could be and would be wrongly convicted.

Government members should respect the complexity of the law, the way they would respect the complexity of medicine or engineering. We would not expect quick visceral reactions to provide the proper course when considering surgery or the construction of a high-rise building; neither should we expect quick fixes for legal problems. Government members should beware of simple solutions. They certainly should not advocate them.

(ii) the Charter

Canada is and should be a democracy. But a good democracy does not leave all issues to be determined by the majority, because the majority may sometimes err. Left unchecked, a majority might even eliminate democracy. Some rights are considered to be so important, that they have been protected from attack by the majority. These are the fundamental rights and freedoms contained in the Charter. The possession and exercise of these rights is what makes democracy possible. The Charter is not an illegitimate constraint on democracy, it is a means of protecting democracy -- from itself, if you like. The Charter, it should also be recalled, is not an entirely unique instrument. Its cousins are the Universal Declaration of Human Rights, the American Bill of Rights, and the European Charter of Rights. All of these instruments set out rights and freedoms that have been paid for with blood in wars against tyranny.

Does the Charter shift power from democratically elected legislatures to the judiciary? Yes, it does. Is that necessarily a bad thing? It is not if the legislature has embarked on a bad or dangerous legislative course; without the courts, the victims of legislation would have no one and nothing to turn to. What if the judges make a bad decision -- what if the judges make a mistake? Cases can be appealed, and, in the right circumstances, re-litigated. Errors in reasoning can be pointed out. Furthermore, legislation may be again attempted, perhaps addressing the difficulties raised by the judges, perhaps attempting a way of addressing the legislative subject different than that reviewed by the court. It should be recalled that our Charter has a "section 1", which allows even the basic rights and freedoms to be restricted by legislation -- on the conditions that the legislation amounts to a "reasonable limit" that can be "demonstrably justified in a free and democratic society." If there are good reasons for restricting fundamental rights and freedoms, and the legislative means support the legislative goals, impair rights and freedoms as little as is reasonably possible, and promote more social good than ill, then the courts will uphold the legislation.

The Charter protects democracy. It protects each of us. It does not hamstring democracy, it prevents democracy from turning on itself. Government members should therefore refrain from "Charter bashing." They should recognize that, in general, the Charter works for good. If particular judicial decisions are disliked, those decisions may be dealt with through the judicial process, or new legislation may be proposed that accommodates the judicial concerns.

"Charter bashing" threatens the Academic Sector, since it suggests that our untutored moral intuitions are a sufficient standard for judging legal outcomes, and the whole apparatus of rights and freedoms argument and the judicial procedures that funnel that argument are, ultimately, illegitimate. It suggests that we really do not need judges, or lawyers, or scholars -- our consciences suffice. Were we sure that we could all clearly discern the eternal law writ upon our souls, this might be a safe approach. Given people as they are, it is not. Hence the need for Charters, judges, lawyers, and scholars.

(b) recommendations


4.1 Government members should not oversimplify justice issues, and, generally, should not advocate "quick fixes."


4.2 Government members should refrain from "Charter bashing."

1. Public Education

1.1 The Provincial Governent should support public education in the administration of justice at three levels:

(i) the secondary school level;


(ii) the adult non-academic level; and


(iii) the M.L.A. level.

1.2 The Provincial Government should draw on the Academic Sector to design, and, in certain cases, deliver this education.

1.3 The Provincial Government should support the Academic Sector's contribution to public education through appropriate funding of the public education initiative.

2. Institutional Partnerships

2.1 The Provincial Government should draw on the resources of the Academic Sector by entering into appropriate partnerships with members of the Academic Sector.

2.2 The Provincial Government should foster three types of partnership:

(i) an interdisciplinary justice advisory body;


(ii) an interdisciplinary criminal justice research body;


(iii) a broadened and more vigourous secondment program.

3. Funding

3.1 The Provincial Government should increase its use of commissioned and grant-funded research.

3.2 The Provincial Government should create an envelope of grant funding for research respecting justice issues.

3.3 The Provincial Government should increase the base operating grant for post-secondary institutions.

4. Attitude

4.1 Government members should not oversimplify justice issues, and, generally, should not advocate "quick fixes."

4.2 Government members should refrain from "Charter bashing."

ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 17th day of November, 1998.

"Wayne N. Renke"

Wayne N. Renke
Associate Professor, Faculty of Law
University of Alberta
President, Association of Academic Staff:
University of Alberta