Question: Does the our current criminal justice system promote peace and justice?
In my Round 3 of my research, I spoke to Marion Buller, a First Nations judge in BC. Judge Buller served as the Chief Commissioner for the Nation Inquiry into Missing and Murdered Indigenous Women and Girls. She was the first First Nations woman to be appointed to the Provincial Court of British Colombia in 1994 and has provided the foundation for the Aboriginal Family Healing Court in 2016. Buller served as President of the Indigenous Bar Association and served as Director of the B.C. Law Court Society, B.C. Law Foundation, B.C. Police Commission and the B.C. Mediators Roster. Buller has lectured and written numerous articles and papers about Aboriginal law, criminal law, family law and human rights. She is a very lovely and interesting women whom gave me great insight into my research. In our interview we went over many different topics and here are some of the questions I asked and what Marion had to say.
- Does our criminal justice system promote peace?
“In some respects yes, in some respects no.
I suppose if you consider what the criminal justice system can do – that offenders are sent to jail for periods of time, or are banned from going to certain areas, or are prohibited from having contact with certain other people – then there can be a more personal peace and a more peaceful community. So, these results could promote peace.
However, the criminal justice system fails to promote peace by its adversarial process, generally. (I am assuming that you have already learned that the Crown has to prove the offence and the defence can raise a reasonable doubt, etc.) Here are two examples: something may have happened to someone. But if the Crown cannot prove what happened, beyond a reasonable doubt, then the offender is acquitted. As a result, the victim, more often than not, feels that they were not believed and they feel unsafe because the offender may retaliate against them. Second example and more specific – people who have been sexually assaulted are very reluctant to go to police because they believe the police will not accept their complaint. Then, the victims are even more reluctant to come to court to testify because they are afraid to see the offender and they are fearful of how they will be cross-examined in court. As result – victims do not complain – offenders go unidentified and unpunished – victims often live with unresolved trauma and in fear of the offender.”
- What changes would I make to the criminal justice system?
“I think that the way sex offences are handled has to change. I think that it is possible to limit cross-examination of victims. It is also possible to change the process of accepting exhibits like items of clothing and specific forensic evidence by using photos in court, rather than the actual item. (I have seen victims become ill at the sight of the clothing they wore at the time of the assault.)
Also, I would expand the legal aid system (lawyers paid by the government to represent people in court). Far too many people can’t afford to pay a lawyer to defend them, but they make too much money to qualify for legal aid. As it is now, only those making minimum wage, or a bit more, will qualify. They have to defend themselves and that is a very difficult thing to do.
The criminal process has to be streamlined – once a person is charged with an offence, the trial has to start as soon as the Crown and defence are ready.
Courts have to better use technology to avoid delays, for greater convenience to witnesses, for filing documents and exhibits, etc. The courts are now learning this thanks to Covid-19!”
- What is the most unfair part of the criminal justice system?
“It is impossible to say which is the most unfair.
As I have described above, the lack of adequate legal aid leads to unfairness. People can’t defend themselves properly. Judges have to remain impartial, so they are limited in how much they can help individuals in court. So, people may end up being convicted when they had a good defence that they didn’t know how to present. Some people may end up going to jail, as a result.
Also, as I have described, above, sex offence trials are unfair the victims. Even though laws have changed to try to protect the victims, there is still much work to be done.
Sentencing is full of unfairness. Mandatory minimum sentences that governments establish mean that someone who is a first-time offender can have the same sentence as someone with an existing criminal record. This goes against so many principles of sentencing set out in the Criminal Code – jail only in the most serious cases, consideration of the personal circumstances of the offender, etc.
Also, reports to judges about the offender’s background, reasons for committing the offence, etc. are often missing or lacking in detail. This makes it very difficult to decide what the correct sentence should be.”
- Do I disagree with specific aspects of our justice system?
“I don’t mean this to be critical, at all, but I assume that since you didn’t use “criminal” that you mean the entire justice system. I think that as a society, we are too quick to sue each other. So many law suits shouldn’t be in court. People should be able to resolve their issues outside of court and we as a society seem to have lost that ability.
For Family Law matters, only the most serious cases should come to court. Coming to court, which is an adversarial process, creates even more hostility between parents who don’t get along. In the end, the children suffer because their parents are constantly at war with each other. Instead, parents should work with mediators or mental health professionals to resolve issues regarding their children.
For Civil matters – contract disputes, insurance claims, injury claims – so many could be resolved in a more effective way through mediators or mental health professionals. Neighbours who have to live beside each other shouldn’t have to sue each other, but should work out their own solutions. Again, court should be used only in the most serious cases.”
For the Criminal offences, you already have my comments!|
- What would a perfect justice system look like?
“It would be accessible by people who need it. It would be fair (equitable) to marginalized people. The process would be streamlined and understandable. The results (decisions, orders, etc.) would be understandable and enforceable.”
If you have anymore questions for both Marion and I please comment!