Should justice be delivered by AI?

Interesting discussion. My understanding is that more legal research is being done by AI and my expectation is that more routine legal work could increasingly be done by AI.

For government, the obvious question is with respect to administrative decisions such as immigration, citizenship, social security etc in routine cases. As the article notes, AI would likely be more consistent than humans, but the algorithms would need to be carefully reviewed given possible programmer biases:

It is conventional wisdom, repeated by authoritative voices such as the former chief justice of Canada Beverley McLachlin, that Canadians face an access-to-justice (A2J) crisis. While artificial intelligence (AI) and algorithm-assisted automated decision-making could play a role in ameliorating the crisis, the contemporary consensus holds that the risks posed by AI mean its use in the justice system should be curtailed. The view is that the types of decisions that have historically been made by judges and state-sanctioned tribunals should be reserved exclusively to human adjudicators, or at the very least be subject to human oversight, although this would limit the advantages of speed and lowered cost that AI might deliver.

But we should be wary of prematurely precluding a role for AI in addressing at least some elements of the A2J crisis. Before we concede that robust deployment of AI in the civil and criminal justice systems is to be avoided, we need to take the public’s views into account. What they have to say may lead us to very different conclusions from those reached by lawyers, judges and scholars.

Though the prospect of walking into a courtroom and being confronted by a robot judge remains the stuff of science fiction, we have entered an era in which informed commentators confidently predict that the foreseeable future will include autonomous artificial intelligences passing bar exams, getting licensed to practice law and, in the words of Matthew and Jean-Gabriel Castel in their  2016 article “The Impact of Artificial Intelligence on Canadian Law and the Legal Profession,” “perform[ing] most of the routine or ‘dull’ work done by justices of the peace, small claims courts and administrative boards and tribunals.” Hundreds of thousands of Canadians are affected by such work every year.

Influential voices in the AI conversation have strongly cautioned against AI being used in legal proceedings. Where the matter has been addressed by governments, such as in the EU’s General Data Protection Regulation or France’s Loi informatique et libertés, that precautionary approach has been rendered as a right for there always to be a “human in the loop”: decisions that affect legal rights are prohibited from being made solely by means of the automated processing of data.

Concerns about the accountability of AI — both generally and specifically in the context of legal decisions — should not be lightly dismissed. There are significant and potentially deleterious implications to replacing human adjudicators with AI. The risks posed by the deployment of AI in the delivery of legal services include nontransparency and concerns about where to locate liability for harms, as well as various forms of bias latent in the data relied on, in the way that algorithms interact with those data and in the way that users interact with the algorithm. Having AI replace human adjudicators may not even be technically possible: some observers such as Frank Pasquale and Eric L. Talley have taken pains to point out that there is an irreducible complexity, dynamism and nonlinearity to law, legal reasoning and moral judgment, which means these matters may not lend themselves to automation.

Real as those technological constraints may be at the moment, they also may be real only forthe moment. Furthermore, while these constraints may apply to some (or even many) instances of adjudication, they don’t — or likely won’t — continue to apply to all of them. Law’s complexity runs along many axes, including applying to many areas of human endeavour and impacting many different aspects of our lives. This requires us to be careful not to treat all interactions with the justice system as equivalent for purposes of AI policy. We might use algorithms to expeditiously resolve, for example, consumer protection complaints or breach of contract disputes, but not matters relating to child custody or criminal offences.

Whether and when we deploy AI in the civil and criminal justice systems are questions that should be answered only after taking into account the views of the people who would be subject to those decisions. The answer to the question of judicial AI doesn’t belong to judges or lawyers, or at least not only to them — it belongs, in large part, to the public. Maintaining public confidence in the institution of the judiciary is a paramount concern for any liberal democratic society. If the courts are creaking under the strain of too many demands, if resolutions to disputes are hobbled by lengthy delays and exorbitant costs, we should be open to the possibility of using AI and algorithms to optimize judicial resources. If and to the extent we can preserve or enhance confidence in the administration of justice through the use of AI, policy-makers should be prepared to do so.

We can reframe the issue as an inquiry into what people look for from judicial decision-making processes. What are the criteria that lead people who are subject to justice system decisions to conclude that the process was “fair” or “just”? As Jay Thornton has noted , scholars in the social psychology of procedural justice, such as Gerald Leventhal and Tom Tyler, have done empirical work that provides exactly this insight into people’s subjective views. People want their justice system to feature such characteristics as consistency, accuracy, correctability, bias suppression, representativeness and ethicality. In Tyler’s formulation, people want a chance to present their side of the story and have it be considered; they want to be assured of the neutrality and trustworthiness of the decision-maker; and they want to be treated in a respectful and dignified manner.

It is not obvious that judicial AI fails to meet those criteria — it is almost certainly the case that on some of the relevant measures, such as consistency, judicial AI might fare better than human adjudicators. (Research has indicated, for example, that judges render more punitive decisions the longer they go without a meal — in other words, a hungry judge is a harsher judge. Whatever else might be said about robot judges, they won’t get hungry. When deciding between human adjudication and AI adjudication, we should also attend to the question of whether existing human-driven processes are performing adequately on the criteria identifiedby Leventhal and Tyler. That is not a theoretical inquiry but an empirical one: it should be assessed by reference to the subjective satisfaction of the parties who are involved in those processes.

There may be certain types or categories of judicial decisions that people would prefer be performed by AI if so doing would result in faster and cheaper decisions. We must also take fully into account the fact that we already calibrate adjudicative processes for solemnity, procedural rigour and cost to reflect conventional views of what kinds of claims or disputes “matter” and to what extent they do so. For example, the rules of evidence that apply in “regular” courts are significantly relaxed (or even obviated) in courts designated as “small claims” (which often aren’t so small: in Ontario, Small Claims Court applies to disputes under $25,000). Some tribunals that make important decisions about the legal rights of parties — such as the Ontario Landlord and Tenant Board — do not require their adjudicators to have a law degree. We have been prepared to adjust judicial processes in an effort to make them more efficient, and where technology has been used to improve processes and facilitate dispute resolution, as has been the case with British Columbia’s online Civil Resolution Tribunal, the results appear to have been salutary. The use of AI in the judicial process should be viewed as a point farther down the road on that same journey.

The criminal and civil justice systems do not exist to provide jobs for judges or lawyers. They exist to deliver justice. If justice can be delivered by AI more quickly, at less cost and with no diminishment in public confidence, then the possibilities of judicial AI should be explored and implemented. It may ultimately be the case that confidence in the administration of justice would be compromised by the use of AI — but that is an empirical question, to be determined in consultation with the public. The questions of confidence in the justice system, and of whether to facilitate and deliver justice by means of AI (including the development of a taxonomy of the types of decisions that can or should be made using AI), can only be fully answered by those in whom that confidence resides: the public.

via Should justice be delivered by AI?

How a broken jury list makes Ontario justice whiter, richer and less like your community

Good in-depth analysis and reporting:

A two-year Toronto Star/Ryerson School of Journalism investigation documenting the racial makeup of jurors in 52 criminal trials since 2016 in Toronto and Brampton reveals flaws in the jury selection process that skews towards property owners, fails to reflect the GTA’s growing diversity and excludes potentially millions of Ontarians from serving their civic duty.

The jury selection list is based on the province’s property assessment rolls, excluding many renters, boarders, students, seniors, spouses who are not named on property titles, transient and low-income people, Indigenous people and those unable to afford property in a red-hot real estate market.

What remains is a prospective juror list disproportionately comprised of white Ontarians able to afford the significant costs of serving in a system that often pays jurors less than minimum wage and does not cover expenses such as travel, parking, meals and child care. It is a particular hardship for hourly workers — Ontario has no law compelling companies to compensate employees for jury duty — the self-employed or those in temporary or contract jobs.

Seventy-one per cent of the 632 documented jurors were white in cities where more than half the population identifies as non-white (In Toronto, 51.4 per cent of residents identify as visible minorities; in Brampton, the figure is 73.3 per cent).

People who identify as Indigenous are not counted as visible minorities by Statistics Canada.

The finding of innocence or guilt by a jury of our peers is a pillar of Canada’s justice system that has been shaken by the recent verdict — delivered by an all-white jury — acquitting white Saskatchewan farmer George Stanley in the second-degree murder of a slain Cree man named Colten Boushie.

Following Stanley’s acquittal, Prime Minister Justin Trudeau said, “as a country we can and must do better,” and justice minister Jody Wilson-Raybould said the government is looking at peremptory challenges, which are used by the defence and prosecution to reject potential jurors without stating a reason. Reports say Stanley’s defence rejected five potential jurors who appeared to be Indigenous.

The Star/Ryerson investigation reporters did not watch jury selection in all 52 trials. The data in this story is based on sitting juries after the selection process, including peremptory challenges.

Beginning in February 2016, reporters attended GTA trials to document juries’ racial composition.

Because the Ministry of the Attorney General does not keep this data, and observers are denied contact with individual jurors, reporters decided upon a visual survey as the most complete possible method to gauge the racial makeup of juries.

Reporters noted jurors’ race based on their physical appearance, using the same categories as police: white, Black, Indigenous and brown, which includes South Asian people. Reporters added the categories Asian and other, which included Latin American, Middle Eastern or mixed-race jurors.

Of the juries documented, only three were composed of 50 per cent visible minority and 50 per cent white jurors. In most cases, white jurors represented the majority with as many as 11 of the 12 positions.

Of the 632 jurors surveyed by reporters, 451 (71 per cent) were white; 45 (7 per cent) were Black; 42 (7 per cent) were brown; 89 (14 per cent) were Asian; and 5 (less than 1 per cent) were listed as other. Reporters were unable to identify a single Indigenous juror.

Across the aisle, the visible ethnicity of the accused presented a very different picture: Of the 59 documented accused (some trials had more than one), 27 (46 per cent) were Black; 13 (22 per cent) were white; 11 (19 per cent) were brown; five (8 per cent) were Asian and three were counted as other.

Over the past decade, as the province’s cities grew increasingly diverse, the Ministry of the Attorney General has fielded many complaints and concerns about the Ontario jury system.

In 2013, Former Supreme Court judge Frank Iacobucci, who authored a report on the lack of Indigenous representationon jury rolls on First Nations reserves, recommended that the Ministry of the Attorney General “undertake a prompt and urgent review” of “using the OHIP database.”

That database, which better reflects Ontario’s population, is still not being used.

“There’s obviously a problem here,” says Ottawa defence lawyer Michael J. Spratt. “Trial by jury is a cold comfort when you’re told that you will be tried by a jury of your peers and no one on that jury looks like a peer. We’re unable to drag our courts into the 21st century and perhaps that explains why our jury system is still stuck in the 19th century.”

The first step in jury selection begins with a notice to Canadian citizens 18 years old and over from a database that generates property ownership and enumeration lists. It is managed by the Municipal Property Assessment Corporation (MPAC) and contains 9.5 million names of both property owners and non-owners.

The database is incomplete. But it has been used as the source for the jury pool for decades.

In a written statement, the Ministry of the Attorney General acknowledged the database used for jury selection, “does not capture everyone in the province” and that it is “committed to improving the provincial jury process.”

MPAC officials also concede shortcomings in the database including large groups of Ontarians who don’t own property.

Creating lists of prospective jurors is “not our core business,” said Syd Howes, manager of information services at MPAC. “This is a property assessment database, this is not a people database.”

Among the blind spots: “We don’t have very many resident students in our database,” says Howes. “And you have fairly large populations in nursing homes and retirement homes and again, we wouldn’t have a lot of those names in our system.”

MPAC doesn’t attempt to assess properties on First Nations reserves, since they are not subject to taxation. The Ministry of the Attorney General says those living on First Nations are entered into the pool from “other lists, like Band lists.”

It is unclear how those who don’t own property, such as renters, are captured. MPAC has mailed occupancy questionnaires to residential properties asking for information for non-owners but only about 20 per cent of the forms are returned, says Howes.

“We have no means of identifying when people move. People aren’t required to tell us … We don’t have access to good tenant information.”

The existing data on non-owners can be plagued with errors. After the 2014 election, MPAC reported 1.2 million revisions to the voter’s list, including changes to 20 per cent of its tenant list, according to a 2015 review obtained by the Star.

The faces that do make it into jury boxes across Toronto and Brampton often have one thing in common: they’re white.

In February 2016, reporters recorded a jury of 11 white people and one brown man hearing the case of a 25-year-old Black male. In March 2016, 10 white jurors, one brown and one Asian heard the case of a 40-year-old brown female. In January 2018, 10 white people and two Asians heard evidence in the trial of a 30-year-old Black male.

Harpreet Saini, a criminal lawyer who has been practising in the GTA for more than a decade, is not surprised.

“There is still a disparity between the communities that we serve and the different types of people who are represented in the criminal justice system.”

For Saini, a jury of peers is one that reflects “the place where you live.” That does not mean a jury must be “exactly like you,” but reflects “the diverse interest of your community.”

Anthony Morgan, a Toronto lawyer with Falconers LLP, says it’s time for the government to name the problem and take action.

“We’re never going to get to a place where we can fix this until we outwardly say, yes, there is an underrepresentation of Black people on juries but there is a dramatic overrepresentation of Black folks who stand charged of crimes,” he says.

In a Toronto jury selection pool of 119 people on Wednesday, reporters counted only three Black prospective jurors. The accused is a Black man in his 20s.

In 2016, Toronto lawyer Steven Hinkson represented a 36-year-old Black man charged with drug and weapons offences. Eleven of the 12 jurors were white.

His client had a question: How come there aren’t any Black people on the jury?

“I tried to explain to him, that’s all we had to choose from,” says Hinkson. “Justice has to appear to be fair and equal. If persons who are in the system don’t see themselves reflected in the system they aren’t going to have much faith in the system.”

Hinkson, who rarely sees more than one or two non-whites on a jury, says that jurors, who are not “culturally sensitive to a racialized person’s experience,” are likely to look upon defence witnesses with “undue scrutiny.”

Jurors unfamiliar with a dialect or accent, for example, “may not look upon the testimony as being equal to somebody who doesn’t have an accent or have a negative perception of them as a consequence.”

The trial of Hinkson’s Black client ended in a hung jury.

Hinkson suspects the majority of the jury was aligned against his client with the exception of the lone non-white member who he says was of East or West Indian descent.

“I think the person of colour was the one that saved us. I think that’s because he could relate more to what the defence was saying. The jury was coming back saying there was one member of the jury that was problematic. And you can see dynamics, the body language. It’s clear to my observation that he was the problem in this jury because his views were not what they wanted.”

In the second trial, his client entered into a deal to reduce the charges in exchange for a guilty plea on lesser charges.

Vanessa MacDonnell, a University of Ottawa law professor, says lawyers have a “professional responsibility, and I would say a constitutional obligation, to ensure that they don’t discriminate against people as part of jury selection process.”

She supports a switch to the more comprehensive OHIP database which could be done “without too much difficulty because these are lists (the government) compiled anyway.”

Former Ontario chief justice Patrick Lesage, retired after serving for nearly three decades on the bench, agrees property ownership is an inappropriate starting point for jury selection.

“If that is the case, it should not be the case,” he said. “It should be (representative of) a cross section of the community at large.”

Provincial health cards, he says, “may be the most universal list that exists. I can’t think of anything that each of us is more certain to have than a health card.”

Ottawa defence lawyer Michael Spratt sees the same jury faces all the time — white, middle class and older.

“I don’t care who makes (the juror list) as long as it is complete and as long as it is a full and accurate representation of the community, and that all individuals — whether you are poor, rich, white, Black, homeless or a homeowner — have an equal probability of forming that list,” he says.

Toronto lawyer Brian Eberdt, who is with Lockyer Campbell Posner, predicts 90 per cent of those involved with the criminal justice system would agree jury selection is a problem.

“I think it’s something that all members of the justice system — from defence, Crown, the court, the judges, and the ministry — I think it’s incumbent on all of us to make sure that the impact of race in distorting a jury’s deliberations is kept to a minimum … We’ve got a long way to go.”

Eberdt points to a jury selection in Brampton last year for a trial involving allegations against his Black client.

“In the entire room of several hundred jurors, I think I saw maybe half a dozen Black people. I know for sure that’s not entirely representative of the cultural mix of Brampton. There’s an unfairness to my client in that.”

Tale of two wards

The Toronto Star compared City of Toronto ward demographics for voting-age adults with ward data provided by the Municipal Property Assessment Corporation from its list of eligible voters — the same list that serves as a starting point for the selection of jurors.

Of the 17 wards examined, most in the old city of Toronto, two stand out.

In Ward 32, which includes the tony Beach neighbourhood, a Star analysis found the difference between the number of voting-age adults living there and the total on MPAC’s list was the smallest, with a 13 per cent variation.

In Ward 11, which includes the neighbourhoods of Weston and Mount Dennis and is among the poorest areas of the city, the difference was the largest, with a variation of nearly 95 per cent.

via How a broken jury list makes Ontario justice whiter, richer and less like your community | Toronto Star

Computer Program That Calculates Prison Sentences Is Even More Racist Than Humans, Study Finds

Not surprising that computer programs and their algorithms can incorporate existing biases, as appears to be the case here:

A computer program used to calculate people’s risk of committing crimes is less accurate and more racist than random humans assigned to the same task, a new Dartmouth study finds.

Before they’re sentenced, people who commit crimes in some U.S. states are required to take a 137-question quiz. The questions, which range from queries about a person’s criminal history, to their parents’ substance use, to “do you feel discouraged at times?” are part of a software program called Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS. Using a proprietary algorithm, COMPAS is meant to crunch the numbers on a person’s life, determine their risk for reoffending, and help a judge determine a sentence based on that risk assessment.

Rather than making objective decisions, COMPAS actually plays up racial biases in the criminal justice system, activists allege. And a study released last week from Dartmouth researchers found that random, untrained people on the internet could make more accurate predictions about a person’s criminal future than the expensive software could.

A privately held software, COMPAS’s algorithms are a trade secret. Its conclusions baffle some of the people it evaluates. Take Eric Loomis, a Michigan man arrested in 2013, who pled guilty to attempting to flee a police officer, and no contest to driving a vehicle without its owner’s permission.

While neither offense was violent, COMPAS assessed Loomis’s history and reported him as having “a high risk of violence, high risk of recidivism, high pretrial risk.” Loomis was sentenced to six years in prison based on the finding.

COMPAS came to its conclusion through its 137-question quiz, which asks questions about the person’s criminal history, family history, social life, and opinions. The questionnaire does not ask a person’s race. But the questions — including those about parents’ arrest history, neighborhood crime, and a person’s economic stability — appear unfavorably biased against black defendants, who are disproportionately impoverished or incarcerated in the U.S.

A 2016 ProPublica investigation analyzed the software’s results across 7,000 cases in Broward County, Florida, and found that COMPAS often overestimated a person’s risk for committing future crimes. These incorrect assessments nearly doubled among black defendants, who frequently received higher risk ratings than white defendants who had committed more serious crimes.

But COMPAS isn’t just frequently wrong, the new Dartmouth study found: random humans can do a better job, with less information.

The Dartmouth research group hired 462 participants through Mechanical Turk, a crowdsourcing platform. The participants, who had no background or training in criminal justice, were given a brief description of a real criminal’s age and sex, as well as the crime they committed and their previous criminal history. The person’s race was not given.

“Do you think this person will commit another crime within 2 years,” the researchers asked participants.

The untrained group correctly predicted whether a person would commit another crime with 68.2 percent accuracy for black defendants and 67.6 percent accuracy for white defendants. That’s slightly better than COMPAS, which reports 64.9 percent accuracy for black defendants and 65.7 percent accuracy for white defendants.

In a statement, COMPAS’s parent company Equivalent argued that the Dartmouth findings were actually good.

“Instead of being a criticism of the COMPAS assessment, [the study] actually adds to a growing number of independent studies that have confirmed that COMPAS achieves good predictability and matches the increasingly accepted AUC standard of 0.70 for well-designed risk assessment tools used in criminal justice,” Equivalent said in the statement.

What it didn’t add was that the humans who had slightly outperformed COMPAS were untrained — whereas COMPAS is a massively expensive and secretive program.

In 2015, Wisconsin signed a contract with COMPAS for $1,765,334, documents obtained by the Electronic Privacy Information Center reveal. The largest chunk of the cash — $776,475 — went to licensing and maintenance fees for the software company. By contrast, the Dartmouth researchers paid each study participant $1 for completing the task, and a $5 bonus if they answered correctly more than 65 percent of the time.

And for all that money, defendants still aren’t sure COMPAS is doing its job.

After COMPAS helped sentence him to six years in prison, Loomis attempted to overturn the ruling, claiming the ruling by algorithm violated his right to due process. The secretive nature of the software meant it could not be trusted, he claimed.

His bid failed last summer when the U.S. Supreme Court refused to take up his case, allowing the COMPAS-based sentence to remain.

Instead of throwing himself at the mercy of the court, Loomis was at the mercy of the machine.

He might have had better luck at the hands of random internet users.

Source: Computer Program That Calculates Prison Sentences Is Even More Racist Than Humans, Study Finds

Never forget the lessons of Europe’s concentration camps: Justice Abella

Powerful commencement address by SCC Justice Abella:

You see before you a Justice of the Supreme Court of Canada who is deeply worried about the state of justice in the world. I was born right after the Second World War. That was the devastating war that inspired the nations of the world to unite in democratic solidarity and commit themselves conceptually, aspirationally, institutionally and legally to the promotion and protection of values designed to prevent a repetition of the war’s unimaginable human rights abuses.

Yet here we are in 2017, barely seven decades later, watching “never again” turn into “again and again,” and watching that wonderful democratic consensus fragment, shattered by narcissistic populism, an unhealthy tolerance for intolerance, a cavalier indifference to equality, a deliberate amnesia about the instruments and values of democracy that are no less crucial than elections, and a shocking disrespect for the borders between power and its independent adjudicators like the press and the courts.

It is time to remind ourselves why we developed such a passionate and, we thought, unshakeable commitment to democracy and human rights, to remember the three lessons we were supposed to have learned from the concentration camps of Europe: Indifference is injustice’s incubator; it’s not just what you stand for, it’s what you stand up for; and we can never forget how the world looks to those who are vulnerable.

Two hundred thousand European Jews survived the Holocaust. Three of them were my parents and grandmother. My mother’s family manufactured roofing materials. My father graduated with a master’s in law from the Jagiellonian law school in Krakow. My parents spent three years in concentration camps. Their two-year-old son, my brother, and my father’s parents and three younger brothers were all killed at Treblinka. My father was the only person in his family to survive the war. He was 35 when the war ended. My mother was 28. As I reached each of those ages, I tried to imagine how they felt facing an unknown future as survivors of an unimaginable past. And as each of our two sons reached the age my brother had been when he was killed, I tried to imagine my parents’ pain at losing a two-year-old child, and I couldn’t.

After the war, my parents went to Stuttgart, Germany, where the Americans hired my father, who taught himself English, to help set up the system of legal services for displaced persons in the Allied zone in southwest Germany. In an act that seems to me to be almost incomprehensible in its breathtaking optimism, my parents and thousands of other survivors transcended the inhumanity they had experienced and decided to have more children. I think it was a way to fix their hearts and to prove to themselves and the world that their spirits were not broken. I was born in Stuttgart on July 1, 1946, 30 years after Louis Brandeis was appointed to the Supreme Court, and my sister two years later.

My father, who was the head of our displaced persons camp, applied to emigrate to Canada, but was refused because his legal training wasn’t considered a useful skill. He eventually was permitted entry as a tailor’s cutter and as a shepherd. Within days of arriving in Toronto, my father went to the Law Society to ask what tests he would need to take to become lawyer. “None,” they said. Non-citizens could not be lawyers. Waiting the five years it took in those days to become a citizen was impossible. There was a family to feed. So he became an insurance agent for the next 20 years, happily. I never heard him complain.

The moment I heard that story as a child about my father not being able to be a lawyer was the moment I decided to become one. I was four. I had no idea what being a lawyer meant, but I did have an idea that I wanted to carry on what I thought he was unfairly prevented from doing. My father died a month before I graduated from law school, and he never lived to see his inspiration take flight in the daughter he raised to fear only injustice, indifference and cowardice, or in his two grandsons, both of whom became lawyers. And he never had a chance to see the marriage he had exuberantly celebrated with me the year before he died flourish into a miraculously joyful partnership with one of Canada’s most brilliant historians.

But my mother did, and carried me proudly into the future on the shoulders of her unwavering confidence for the next 40 years, until she died in 2010. This extraordinary honour [of an honorary degree] from Brandeis is for me above all a tribute to her unwavering resilience, inspiration and courage.

A few years ago, she gave me some of my father’s papers from Germany that I’d never seen before. In those papers I found the answer to why he always spoke so respectfully and appreciatively of Americans. I saw letters from American lawyers, prosecutors and judges he had worked with in the U.S. zone in Stuttgart. They were warm, compassionate and encouraging letters, either recommending, appointing or qualifying my father for various legal roles in the court system the Americans had set up in Germany after the war. These Americans believed in him, and as a result they not only restored him, they gave him back his belief that justice was possible.

I found one of the letters written to him by an American lawyer in 1947 to be particularly poignant. It said, “Under extreme difficulties, you contributed your share in helping to make life bearable for your friends, co-nationals, and those of other nationalities. It is hard to be a refugee, and it is twice as hard to be a refugee and a lawyer. You were battered, but you did not allow yourself to be beaten. You continued to fight for your human rights and for those of your fellows in fate, like brave fighters for a new society.”

And here I am 70 years later, a member of that new society he fought and hoped for, and the beneficiary of generosity and opportunities he would never have dreamed possible, including, amazingly, an honorary degree from Brandeis, a university he venerated, and all because the phoenix that rose from the ashes of Auschwitz was justice – beautiful, democratic, tolerant, compassionate justice.

My life started in a country where there had been no democracy, no rights, no justice and all because we were Jewish. No one with this history does not feel lucky to be alive and free. No one with this history takes anything for granted, and no one with this history does not feel that we have a particular duty to wear our identities with pride and to promise our children that we will do everything humanly possible to keep the world safer for them than it was for their grandparents, a world where all children – regardless of race, colour, religion, or gender – can wear their identities with dignity, with pride and in peace.

Source: Never forget the lessons of Europe’s concentration camps – The Globe and Mail

Black People Are Wrongly Convicted Of Murder More Often, Data Show : NPR

Speaks for itself:

A record number of people, at least 166, were exonerated last year after being wrongly convicted of crimes, according to the most recent annual report from the National Registry of Exonerations.

It’s the third year in a row that data collected by a group of law schools showed a record number of exonerations in the U.S. — with 149 in 2015 and 125 the year before that.

Using information on exonerations going back to 1989, the latest report also shows that black people continue to be more likely to be wrongly convicted in America than people of other races. There is no standardized reporting system for exonerations, but the registry is the most complete national data collected on the subject.

Take the crime of murder. Last year, the report collected data on 52 people who were exonerated of murder. More than half of them, 28, were black.

companion report on race and wrongful conviction, also released Tuesday, states:

“African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 [total] exonerations listed in the National Registry of Exonerations (as of October 2016).”

As NPR’s Joe Shapiro reported last year, “after almost nine years in prison, his conviction was overturned when a state investigation found that the real killer had later confessed to Wayne County police and prosecutors.”

Joe also reported that court fees, including a $1,500 bill for a public defender, nearly kept the now-23-year-old man from being released — even after he had been exonerated.

Last year, The Texas Tribune reported that the state had paid 101 people who were wrongly convicted nearly $100 million over the previous 25 years.

I’ll be ‘proud’ when Canada achieves justice for all: Denise Balkissoon

A needed broader perspective on the justice system than provided by Ghomeshi defence lawyer Marie Henein:

I don’t expect defence lawyers to be nice, and so I didn’t have any beef with Marie Henein until this week. Then she said that our legal system is one “we should all be proud of,” and now I’m compelled to reply: Don’t be absurd.

It’s one thing to state, as Jian Ghomeshi’s ferociously successful lawyer also did in her CBC Television interview, that justice was “absolutely” served when her client was acquitted. That proclamation refers to a single case – specific circumstances of evidence and reasonable doubt, one set of police officers and Crown attorneys, one particular judge.

But to say, as she did, that the Canadian justice system is impartial “each and every single day,” well that’s simply wrong. Training and intellect might help Ms. Henein skillfully navigate the system, but that doesn’t mean the system itself is admirable.

After Mr. Ghomeshi’s acquittal on multiple charges of assault and sexual assault, an unhappy group marched north from the courthouse to the Toronto Police Service headquarters on College Street. There, it merged with Black Lives Matter Toronto, justice advocates who have been sleeping outside the police HQ for almost two weeks now. Native Child and Family Services of Toronto is right next door, and indigenous demonstrators were soon in the mix as well.

Emotions were extremely high and the number of criticisms levelled at the Canadian justice system was overwhelming. Many of them were also valid, and reflective of my own personal list.

For example: A quarter of federal prisoners are aboriginal, even though just 4 per cent of the population is indigenous. Black Torontonians (and non-white Canadians across the country) are much more likely to be “carded,” meaning stopped randomly by police and asked to submit personal information despite not being accused of a specific crime.

Justice is expensive and the more impoverished you are, the less likely you are to receive it. The Legal Aid cutoff for a single person in Ontario is $14,000 a year, or about half of working full-time for minimum wage; Ms. Henein’s fee is rumoured to be up to $1,000 an hour. Lawyers who work with low-wage clients talk about the scourge of “pleading out” – when innocent defendants make deals, acquiring criminal records because they lack the resources for endless, unpredictable court dates.

If Ms. Henein truly considers herself a feminist, as has been endlessly discussed, a recent Criminal Lawyers’ Association report must surely upset her: Female lawyers are dropping out in droves, in part because of sexist treatment by police, court staff and judges. There are many ways that the law disappoints Canadian women – please also do not forget the hundreds of native women and girls whose disappearances and murders have been virtually ignored for decades.

To say, as Ms. Henein did, that justice in Canada is “very, very good,” is to consider all of these problems acceptable. It’s an attempt to write off dissenters as a motley crew with aimless complaints, when in reality many legal critics have clear, concrete suggestions for change.

For example, Black Lives Matter Toronto wants transparency around police violence toward civilians; this includes tracking the race of those killed by police and an inquiry into the death of Andrew Loku, a mentally ill father of five shot in his hallway last year.

One wish of many indigenous lawyers is increased application of the Supreme Court’s 1999 Gladue decision: When sentencing indigenous offenders, the focus is meant to be on rehabilitation, not punishment, with true consideration of the impact of residential schools and other historical inequities.

And advocates for sexual assault survivors have a number of ideas worth considering, such as greater use of the civil system versus the criminal courts, and increasing complainants’ access to legal support and information.

The list of proposed solutions is as long as the list of problems, and that’s good. A growing, evolving justice system is something we should all want, and I think we do. A 2014 Angus Reid Survey found that only about 60 per cent of Canadians said they trusted the police, while a mere 40 per cent said they had confidence in the criminal courts.

Victorious defence lawyers might be proud of our justice system, but the rest of the country has doubts that are more than reasonable. I guess winning is a heady drug, and intoxicants do tend to interfere with one’s sense of reality.

Source: I’ll be ‘proud’ when Canada achieves justice for all – The Globe and Mail

Restoration of the Court Challenges Program

Another one of the mandate letter commitments of interest, noted by Jeff Sallot writing on the challenges the Liberal government has in reversing the previous government’s approach to the courts (it used to be administered by the Human Rights program at Canadian Heritage, part of the then Multiculturalism and Human Rights Directorate when I was there):

Trudeau’s mandate letter to Wilson-Raybould suggests that shameful foot-dragging by government lawyers will no longer be part of the federal government’s litigation strategy.

The minister’s mandate goes even further. She’s been told to work with Heritage Minister Mélanie Joly on restoring a “modern Court Challenges Program.” The last version of this program was killed by the Harper government in 2006. It provided financial assistance to people and groups who had what looked like legitimate beefs with the government involving equality rights.

Program officials were independent and worked at arms’-length from the government. They looked for cases that raised important questions about rights and public policies so that the courts could render judgment and provide guidance on how the Charter should be interpreted in similar circumstances down the road.

Many of the earliest rights cases, including gender equality cases, might never have made it through the courts without the financial assistance of the Court Challenges Program. And we would all be the poorer for it.

How Harper tied the courts in knots — and what Trudeau should do about it

Ministerial Mandate Letters: Mainstreaming diversity and inclusion, and point of interest from a citizenship and multiculturalism perspective

With the Mandate letters now public, two good pieces by Susan Delacourt (You’ll be judged by how you treat others, Trudeau cabinet warned) and Paul Wells (Justin Trudeau repeats himself) on the template used to guide  Ministers on the government-wide priorities and the expected and broad code of conduct.

Delacourt notes:

Working well with others — including people in the media — is now officially part of the job description for Canadian cabinet ministers.

The “mandate letters” given to every minister are setting a new bar for co-operation in Justin Trudeau’s government, according to one letter obtained in advance of the expected public release.

In fact, if the sheer word volume in these letters is any indication, co-operation seems to be the top item on the to-do list of Trudeau’s team.

Ministers are being warned that they will be judged by how well they treat a whole raft of people — everyone from business to labour, stakeholders and citizens, and yes, the opposition and the media too.

“Members of the Parliamentary Press Gallery, indeed all journalists in Canada and abroad, are professionals who, by asking necessary questions, contribute in an important way to the democratic process. Your professionalism and engagement with them is essential,” the letter states.

….One group of people is singled out as well in the mandate letters for special treatment from government. “No relationship is more important to me and to Canada than the one with Indigenous Peoples,” the letter states.

 The notable feature of these mandate letters, as mentioned, is the amount of words devoted to culture change of the kinder, gentler sort. “Open by default” is an operating principle.
 Wells analyses further:

Possible explanations for this outbreak of boilerplate include (a) a particularly wonky form of Tourette’s; (b) a desire to put most of the country to sleep before we get to the good stuff; (c) the PM and his advisers actually think the repetitive stuff is worth repeating. I’m going to go with (c). So while many colleagues will focus on what changes from letter to letter, let’s pause here to look at what doesn’t. 

  • “Real change—in both what we do and how we do it.” … Now, these letters come from Trudeau and his staff and appear over his signature, but it’s nearly a deadlock certainty that public servants were involved in the process, and one of them will have said: Prime Minister, if you evoke “a personal commitment” to this stuff and then tell ministers they “will be held accountable for our commitment,” you’re elevating it way beyond the realm of pious nostrum. You’re making it sound like you mean it. Repeating it 30 times in letters to 30 ministers is like tracing a line in the sand, then scraping it a yard deep.
  • “Track and report on the progress of our commitments.” …., idealism and political self-interest become nearly synonymous: Trudeau wants to be able to meet voters in, probably, 2019, with a bunch of check marks next to his 2015 promises. And again, by publicly repeating that goal, he is offering up a jumbo hostage to fortune if any promise proves impossible to keep.
  • “No relationship is more important to me and to Canada than the one with”— Actually, it’s interesting here to try to guess how this sentence ends. Important relationships. Hmm. The one with . . . the United States? The United Nations? Hard-working families? Nope. Again in every letter, Trudeau elevates the relationship with “Indigenous Peoples” above every other in his personal hierarchy of priorities…..
  • “Observe the highest ethical standards in everything you do.” …“As noted in the Guidelines, you must uphold the highest standards of honesty and impartiality, and both the performance of your official duties and the arrangement of your private affairs should bear the closest public scrutiny. This is an obligation that is not fully discharged by simply acting within the law.”Expect opposition members to quote that last sentence back to Trudeau and his ministers any time one of them lands in hot water. “It’s legal” is not, in Justin Trudeau’s own judgment, a sufficient defence for poor conduct.

Diversity and Inclusion commitments:

Turning from the general to the specific with respect to citizenship and multiculturalism, what is striking are the two paragraphs, again to all ministers, mainstreaming the Government’s diversity and inclusion agenda with a commitment to end divisive politics and practices and renewed emphasis on employment equity for women, indigenous Canadians and minority groups in political appointments:
Canadians expect us, in our work, to reflect the values we all embrace: inclusion, honesty, hard work, fiscal prudence, and generosity of spirit. We will be a government that governs for all Canadians, and I expect you, in your work, to bring Canadians together.
You are expected to do your part to fulfill our government’s commitment to transparent, merit-based appointments, to help ensure gender parity and that Indigenous Canadians and minority groups are better reflected in positions of leadership.

The specific commitments for each Minister will, of course, be reflected in the performance management agreements of Deputy Ministers, which in turn will cascade down to all levels of management. Hence, these are the ones that will be met given their priority.

Immigration, Refugees and Citizenship Minister

The specific commitments track the party platform commitments in immigration and refugees. On citizenship, the mandate letter expands on the platform by including repealing the revocation provisions of the C-24 Citizenship Act and the ‘intent to reside’ provision.

In other words, very surgical changes rather than more sweeping changes. For example, no mention of reversing the expansion of knowledge and language requirements from 18-54 to 14-64 year olds, nor reversing the sharp increase in citizenship fees (from $100 to $530), nor improvements in due process (oral hearings in cases of misrepresentation).

While not in the list of commitments, presumably the Minister will revise and rebrand the citizenship study guide, Discover Canada, with more inclusive substance and language, given the overall priority mentioned above.

The specific commitments are below:

As Minister of Immigration, Refugees and Citizenship, your overarching goal will be to reopen Canada’s doors to welcome those who want to contribute to our country’s success. Canadians are open, accepting, and generous – qualities that should be reflected in Canada’s immigration policies and in our approach to welcoming those seeking refuge from conflict and war. Our communities are strengthened when we come together to welcome newcomers who want to build a better Canada and to help those in need.
In particular, I will expect you to work with your colleagues and through established legislative, regulatory, and Cabinet processes to deliver on your top priorities:

  1. Lead government-wide efforts to resettle 25,000 refugees from Syria in the coming months.

  2. As part of the Annual Immigration Levels Plan for 2016, bring forward a proposal to double the number of entry applications for parents and grandparents of immigrants to 10,000 a year.

  3. Give additional points under the Entry Express system to provide more opportunities for applicants who have Canadian siblings.

  4. Increase the maximum age for dependents to 22, from 19, to allow more Canadians to bring their children to Canada.

  5. Bring forward a proposal regarding permanent residency for new spouses entering Canada.

  6. Develop a plan to reduce application processing times for sponsorship, citizenship and other visas.

  7. Fully restore the Interim Federal Health Program that provides limited and temporary health benefits to refugees and refugee claimants.

  8. Establish an expert human rights panel to help you determine designated countries of origin, and provide a right to appeal refugee decisions for citizens from these countries.

  9. Modify the temporary foreign workers program to eliminate the $1,000 Labour Market Impact Assessment fee to hire caregivers and work with provinces and territories to develop a system of regulated companies to hire caregivers on behalf of families.

  10. Lead efforts to facilitate the temporary entry of low risk travelers, including business visitors, and lift the visa requirement for Mexico.

  11. Work with the Minister of Justice and the Minister of Public Safety and Emergency Preparedness to repeal provisions in the Citizenship Act that give the government the right to strip citizenship from dual nationals.

  12. Eliminate regulations that remove the credit given to international students for half of the time that they spend in Canada and regulations that require new citizens to sign a declaration that they intend to reside in Canada.

Canadian Heritage Minister

Noteworthy for what is not in the letter: any mention of multiculturalism following its transfer back to Canadian Heritage after some eight years at the former CIC.

This will give the bureaucracy time to implement the machinery changes (time-consuming at the best of times) and re-integrate and rebuild policy and related capacity that was dispersed and weakened at CIC.

For better and worse, it will give officials a freer hand in this reintegration process and the more important policy reflections on how multiculturalism can better reflect the diversity and inclusion agenda, lost somewhat at CIC under then Minister Kenney.

This would start with a review of the priorities enunciated in 2010, where language (e.g., inclusion) and substance (e.g., employment equity, racism and discrimination):

  • build an integrated, socially cohesive society;
  • help federal and public institutions respond to the needs of a diverse society; and
  • engage in international discussions on multiculturalism.

The first opportunity to reflect this change will be the February tabling of the Annual Report on the Operation of the Canadian Multiculturalism Act, with the Ministerial message and overview (the report will cover the 2014-15 fiscal year period and thus report on the previous government’s initiatives).

However, there is a risk that the lack of political direction (and ‘supporting minister’) will undermine the ability for the multiculturalism program to play an effective policy role in the government’s overall diversity and inclusion agenda.

The overarching  commitment in the mandate letter:

As Minister of Canadian Heritage, your overarching goal will be to implement our government’s plan to strengthen our cultural and creative industries. Our cultural sector is an enormous source of strength to the Canadian economy. Canada’s stories, shaped by our immense diversity, deserve to be celebrated and shared with the world. Our plan will protect our important national institutions, safeguard our official languages, promote the industries that reflect our unique identity as Canadians, and provide jobs and economic opportunities in our cultural and creative sectors.

The one commitment related to, but much broader than multiculturalism, is with respect to reinstating the court challenges program (it provided funds to groups that need funding to contest specific policies):

  1. Work with the Minister of Justice to update and reinstate a Court Challenges Program.

Roles of Other Ministers

The Minister of Justice is expected to:

  1. Review our litigation strategy. This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values. [e.g., the citizenship niqab case, cuts to refugee healthcare]

  2. Support the Minister of Canadian Heritage to restore a modern Court Challenges Program.

  3. Work with the President of the Treasury Board to enhance the openness of government, including supporting his review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.

The Minister of Public Safety and Emergency Preparedness has no commitment with respect to softer approaches to countering violent extremism (e.g., research, working with communities, deradicalization) although this can be implied from the overall inclusion messaging.

Link to all mandate letters:

ministerial mandate letters