IMPLEMENTING COMMUNITIES OF CARE IN TRAUMA-INFORMED LEGAL PRACTICE

RORY ERICKSON

CLASSIC LAW AND U OF S, COLLEGE OF LAW

Supporting trauma-informed legal practice requires the recalibration of trauma theory for the effective practice of law. The language of trauma in legal discourse has become rooted in European hegemony1, functioning to reproduce the very interests and systems that have enforced trauma by justifying ongoing colonial interventions and the structuring of knowledge involving trauma experiences.2 Dominancebased interactions are framed as ‘wellintended,’ furthering pathologized and deficiency-centered assumptions about trauma. This process contributes to the undermining of community and resilience – a perfect storm that undercuts the advancement of communities and individuals by enacting harm under the guise of care and client advocacy.

For trauma-informed practice to happen effectively, healing and selfawareness must occur for those involved in the provision of supports. Interpersonal interactions are impacted by beliefs and biases that become amplified by assumptionsbased interactions involving monoepistemic ways of knowing. A multi-epistemic approach to traumainformed practice “supports the awareness that there are multiple ways of knowing, understanding and assigning meaning”3 to trauma and its healing. Recognizing and supporting anti-colonial and Indigenous intersectional perspectives of trauma creates opportunities for the upholding of Indigenous sovereignty and the further reconfiguration of legal practice.4

As a community organization, CLASSIC Law is grounded within client-centered practice, which requires an awareness of the unique and dynamic needs of each individual client. Understanding an approach to interdisciplinary supports requires the emphasis of a client’s priorities by identifying their role within a

Adrienne Huard emphasizes the as one that actively disrupts damage and deficiencycentered narratives because it “encourage[s] a trauma-informed responsibility…that celebrates our kinship, successes, sovereignty, and resistance.”5 Developing this in legal practice provides a potential solution to the dominant discourse of trauma by enabling healing and care to be structured around the client’s self-determination.6 Against colonial subjugation enforced by practitioner-client power dynamics, self-determination presents the client as an expert in their own right - as resilient, celebrated, and determining of their own future through the ongoing support of their communities. Of importance to this notion of self-determination is the inherent limitation of a colonial justice system that attempts to deny Indigenous legal traditions and restorative justice practices, requiring the navigation of limited options through acts of resistance and community connection. In all manners of expertise, including social work, education, law, healthcare, or governmental decisionmaking, humans remain at the core of decisions made and acted upon. And yet, a demarcation becomes apparent between those who receive care and those who provide it. What emerges from that space in between is the belief that care providers and practitioners, as experts in their field, need not seek out the very care that they intend to provide. Therein lies ‘the arrival’ – for techniques, devices, and an awareness for other people without self-reference. A scope of care that includes ‘the self’ will never allow for an arrival when the practice of care necessarily requires an ‘ever-approaching horizon.’ 7

Trauma is a mark of humanity shared, boundaryless and iterative, however, its existence remains unacknowledged in many of the institutions responsible for both maintaining and preventing its occurrence. As one such domain, the government has articulated the enforcement of trauma through explicit policies and practices witnessed in immigration trauma,8 evictions,9 and programs such as the Saskatchewan Income Support (SIS) program, which inadequately supports participants by significantly reducing income supports.

The legal institution has itself prescribed the limits of the necessary qualifications for its practice, resulting in the implicit enforcement of trauma through client-blaming behaviours10 and a lack of awareness about trauma’s presence within the criminal justice system.11 Presently, trauma-informed practice is not a required component of any level of legal education or training.

When an awareness of trauma is absent, the practitioner is incapable of recognizing the occurrence of trauma, leaving them inadequately prepared to respond and support their client’s needs. When abuse or neglect is suspected by a healthcare professional, for example, the legal 'duty to report' does not function on the basis that the suspicion must be proven to be correct, but rather that an awareness and responsibility exists to trigger that duty. Without the understanding of symptoms of abuse or neglect, together with a duty to report when those symptoms exist, protection is neither provided nor valued. Conversely, when legal services are provided, the practitioner must be able to identify the likelihood of trauma to ensure that individuals are advocated for and that no further harm is caused by future interactions. Expanding lawyer competencies to include trauma-informed legal practice would promote the well-being of clients and the fostering of successful clientcentered relationships.

1 Stef Craps, Postcolonial Witnessing: Trauma Out Of Bounds, vol 1 (New York, NY: Palgrave MacMillan, 2013). 2 Natalie Clark, “Shock and Awe: Trauma as the New Colonial Frontier” (2016) 5:14 Humanities at 4. 3 Zelaika S. Hepworth Clarke, Coming to My Senses: A Decolonizing Autoethnographic Exploration of Osunality (PhD Dissertation, Widener University, 2015) [unpublished]. 4 Clark, supra note 2 at 7. 5 Adrienne Huard, “CoC Methodology: Generating Communities of Care Within Indigenous Spaces Through Trauma-Informed Visual Culture” (2020) 31:62 Public 60. 6 Clark, supra note 2 at 5, citing Jill Hill et al, “Integrating Trauma Psychology and Cultural Psychology: Indigenous Perspectives on Theory, Research, and Practice” (2010) 16 Traumatology 39. 7 José Esteban Muñoz, Cruising Utopia: The Then and There of Queer Futurity , 10th ed (New York, NY: NYU Press, 2019). 8 RoseMarie Perez Foster, “When Immigration Is Trauma: Guidelines for the Individual and Family Clinician” (2001) 71:2 American Journal of Orthopsychiatry 153. 9 Sarah Buhler, “Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies” (2021) 35:4 Journal of Law and Social Policy 68. 10 Gemma Smyth et al, “Trauma-Informed Lawyering In The Student Legal Clinic Setting: Increasing Competence In Trauma Informed Practice” (2021) 28:1 International Journal of Clinical Legal Education 149. 11 “Trauma & Compassion: My Interview with Gabor Maté” (1 June 2020), online (podcast): The Trauma-Informed Lawyer hosted by Myrna McCallum.

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THE PROVINCIAL COURT OF SASKATCHEWAN;

REFLECTIONS FROM A PANDEMIC YEAR

JUDGE L.E. GIBB

PROVINCIAL COURT OF SASKATCHEWAN

I am pleased to provide a contribution to this edition of the CBA’s BarNotes on behalf of the Provincial Court of Saskatchewan. As a province, we are in a time of change and adaptation in light of the pandemic and its impact in our communities. We have responded in times of uncertainty quickly while learning new ways of communicating and ensuring access to justice. As a court, we have learned that in the face of crisis that lightning speed adaptation was possible with the use of creativity and the aid of technology.

In the last year, our court welcomed the appointment of Chief Judge S. Metivier to take the helm from former Chief Judge J.A. Plemel who both guided us through uncharted territories and demonstrated incredible leadership throughout. Additionally, there were several new court appointments including Judge J. Lubyk in Prince Albert, Judge M. Tomka in Meadow Lake and Judge L. Hintz in Yorkton. For more recent appointments, myself included, we have the benefit of this being the only normal that we know as new judges.

The pandemic highlights the importance of the court to be flexible, which includes responsivity to travel restrictions, physical distancing and managing the pandemic a day at a time. The 12 permanent court locations remained open and many considerations weighed before travelling to the 62 circuit points province-wide. Our court remains alert to the concerns of time to trial. We aim to ensure post-pandemic there is not a backlog of cases and addressing any potential trial delays with efficiency. The courts have also ushered in the advancement of technologies for court appearances including the expansion of video technology across the province. If there was a tag line for the pandemic, I am sure a frontrunner would be, “Can you hear me now?”

The court has been mindful of the communities who also experience greater impacts due to remoteness. In the advent of technology, we were reminded of the significance of access to justice for those individuals who could not easily appear by telephone or travel the distance to the permanent locations if the circuit point was closed. On many occasions, it took a willingness to try different approaches to getting people to court, including calling someone’s cousin’s brother’s aunt’s phone to reach the person we were looking for. We are also reminded daily of the lengths that people will go to make it to their court appearance and the corresponding willingness of the courts to accommodate during times of uncertainty.

One of the highlights of the past year was the creation of the first National Day for Truth and Reconciliation on September 30th. A day to commemorate the survivors of Canada’s Residential Schools and their families and communities in the spirit of reconciliation. The permanent judges of our court spent part of the inaugural day with a residential school survivor who presented to our court and deepened our understanding of the importance of truth and reconciliation as members of the judiciary.

Another concrete action that our court has taken in demonstrating our commitment to relationshipbuilding in Indigenous communities is to close court in honour of National Indigenous Peoples Day on June 21st in the circuit points held in First Nations communities. In reflecting on our courts efforts towards reconciliation as it impacts justice participants, I am reminded of the words of the Chief Justice of the Supreme Court, the Right Honourable Mr. R. Wagner, P.C. in his speech titled

delivered on May 6, 2021 where he poignantly stated, “We must redouble our efforts of Reconciliation with the First Peoples of Canada. Judges are expected to be alert to the history, experience and circumstances of Indigenous peoples. We must make the same commitment to those who make up the many other diverse cultures and communities in the areas we serve.” The pandemic has shown us new ways to engage with justice participants and in the courts, reminding us of the fundamental principle of access to justice every day and served as a daily reminder that we are all in this together. Photo of Judge Gibb, Sweet Moon Photograph www.sweetmoonphotography.ca/

RECONCILIATION IN CANADIAN LAW: ONE SETTLER LAWYER’S ATTEMPTS TO SITUATE RECONCILIATION IN THE MOVE TOWARDS A POST-COLONIAL REALITY

NICHOLAS BLENKINSOP

CLASSIC LAW

I am a privileged white male. I work as a lawyer. If there are boxes of privilege, I can tick them all. I work at Community Legal Assistance Services for Saskatoon Inner City Inc. (“CLASSIC”), a non-profit charitable legal clinic in Saskatoon. CLASSIC offers free legal services and programs to people who are otherwise on their own with their legal matter. CLASSIC’s Mission Statement reads as follows:

With a commitment to social justice, decolonization, and the dignity of all people, CLASSIC provides:

• free legal services, programming and supports for people who experience poverty and injustice, and • internationally-recognized clinical legal education to law and interdisciplinary students.

I work in CLASSIC’s Walk-in Advocacy Clinic, which is a program that provides full legal representation for folks who would not otherwise have a lawyer. I also act as a Supervising Lawyer overseeing clinical law students, from the College of Law. Given CLASSIC’s Mission Statement above, and the reality of offering legal services to people who experience poverty within an organization that has social justice and decolonization at its core, Reconciliation must guide the work that I do. Reconciliation is more than simply an issue in Canada’s zeitgeist, it is something that informs how I practice law. Through my work, I have come to notice that Reconciliation, or the ideas that it evokes, are woven into the legal fabric of this country. In this article, I will work to offer some thoughts around my understanding of Reconciliation and colonialism and then offer some thoughts as to how these ideas are relevant to legal practice today. CLASSIC’s hope is that this article will demonstrate the teaching we provide students, and the intentional thought around colonialism, Reconciliation, and hopefully decolonization, that informs our clinic.

Reconciliation is borne out of settler Canada trying to come to terms with the problems associated with colonialism. It could be seen as a manifestation of an interest in moving towards a postcolonial reality. The consequences of colonialism are, and have been, dire. For me, in seeking a way forward, a way to personalize Reconciliation, it is important to understand how colonialism worked and continues to work – to have a theoretical framework for it. My inquiries brought me to Albert Memmi.

A Jewish Tunisian by birth, Memmi could be seen as the consummate outsider. Non-Muslim and French speaking during his early life in Tunisia and then, after a time in a concentration camp, a colonial emigre in France. A sociologist by training, he wrote several books including his seminal work, “The Colonizer and the Colonized.” In it, Memmi explores the colonial relationship and the power relations between colonizers and the colonized.

For Memmi, the colonial relationship is one of power and usurpation. The colonizer comes into a place that has been lived in for a time but that is new for the colonizer and then not only starts living in the place, but takes over. The process of taking over is one of denigration or denial of that which existed before the colonizers’ arrival. A denigration of the people, the language, the culture, the society, the laws, everything. It is created, according to Memmi, in a selfjustificatory way: Everything coming from the power group, the colonizers, is right and good; and everything about the colonized is wrong and bad. Systems are created which protect the pattern of colonial privilege and tautologically justify the actions of the colonizer. This applies equally to the legal system that is imposed.

As the colonial system is imposed, the colonizer, their language, their culture, their laws, and ways are privileged, and those things associated with the colonized are rejected. Part of the rejection of that which is associated with the colonized is silencing. Their knowledge, language, culture, having been denigrated, is silenced. Space is not created for hearing from the colonized.

According to Memmi, however, the reality of this relationship is an uncomfortable one for some colonizers. They see the patterns of disadvantage and are revolted. They wish to do something to change that which causes them concern. The difficulty, however, as observed by Memmi is that the change that would be needed would involve altering the colonial relationship. This change would bring about risk. In that all colonizers are privileged by the colonial system, changing the system could displace that privileged position. More bluntly, Memmi states that what is difficult for the colonizer who talks of rejecting the colonial ways is that “[w]hat he is actually renouncing is part of himself, and what he slowly becomes as soon as he accepts a life in a colony” [p. 64]. In other words, to be a colonizer who rejects means to situate oneself as part of a movement that, if it is successful, may create something new.

This “something new” mentioned by Memmi is reflective of the concept of Reconciliation. This change to the colonial relationship, to the patterns of privilege and denigration, is the vision that Canada is to undertake through Reconciliation. This vision is pointed to in jurisprudence from Canadian Courts.

In , 1996 CanLII 216 (SCC), [1996] 2 SCR 507, <https:// canlii.ca/t/1fr8r>, retrieved on 202106-01. At paragraph 37, the Supreme Court of Canada uses language that is evocative of Memmi to do with the process of colonialism:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty, as Moynihan J. perceived in the present case. It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled "with the institutions or the legal ideas of civilized society", In [1919] A.C., at p. 233, that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. These fictions denied the possibility of a native title recognized by our laws. But once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was "desert uninhabited" in fact, it is necessary to ascertain by evidence the nature and incidents of native title. [Emphasis added.]

Then at para. 42, the Court goes on:

The challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined... a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives. [Emphasis added.] In a more nuanced way, both 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and 2012 SCC 13 (CanLII), [2012] 1 SCR 433 point towards the something new. In those decisions the Supreme Court of Canada requires that, considering the damaging effects of colonialism which can be seen in the dramatic overrepresentation of Indigenous peoples in prison, Judges hear the story of the Indigenous person coming before the Court – underlining the significance in the process of Reconciliation for colonizers to shut-up and listen.

There are also the Indian Residential School adjudication processes. Structured differently, they permitted different ways of truth seeking.

These legal trends are significant. There are others. They point to the possibility of new ways of approaching law which change the colonial relationship and moves away from the denigration of the colonized voice, their systems, their culture. It is these trends that evoke what Reconciliation is calling on us to become. The process, however, must be done in a way which ensures that the means used also deconstruct the hierarchy imposed by colonizers. This is a journey. At CLASSIC, we hope that one day this journey leads to the decolonization of our legal (and other) systems. But that is another article for another day

PROFESSIONAL REGULATION: THE DUTY OF FAIRNESS IN INVESTIGATIONS

JAMES STEELE

ROBERTSON STROMBERG LLP

Introduction:

When a professional college investigates an initial complaint against its member, does it owe the member a duty of fairness? Does it have to inform them of the substance of the allegations against them, and give them a chance to reply, as part of the investigation?

This article explains that, under current Canadian case law, there is no such bright line duty. Rather, there are two divergent case law trends in Canada. The first line of cases suggests that any duty of fairness is very limited at the investigation stage. However, the second line of cases suggests that a more robust duty is in fact owed.

In response to this judicial inconsistency, this article suggests a practical approach for professional regulators. Namely, even during the investigation stage, professional bodies should inform members of the case against them and afford a fair opportunity of reply. This approach will reduce the chance of later discovering relevant evidence, which could have avoided a hearing. It will also reduce the likelihood that the member feels the process has been unfair, and potentially launches a procedural objection.

What duty of fairness exists at the investigation stage?

The extent to which a duty to act fairly exists in the investigation stage, is not well defined by judicial authority. As a starting premise, a College should of course follow their governing statute or bylaws. If the governing bylaws direct what notice must be given to the member, those directions must be followed. If the bylaws impose a requirement to hear from the member as part of the investigation, that must be adhered to.

But absent any such direction, this matter is governed by common law. The inconsistencies in Canadian case law were well summarized by Bryan Salte Q.C. in

Each of these two distinct case law approaches are now examined.

Decisions suggesting a low duty of fairness

We therefore begin by first summarizing the first line of Canadian decisions, that positing a low duty of fairness in an investigation.

In , 2009 CarswellAlta 499, 2009 ABCA 134, a natural gas company was taken over by another company. The natural gas company allegedly made financial misrepresentations and was investigated. The Court held that the duty of fairness at the investigation stage was low:

113 The appellants' fifth claim is that Staff conducted the investigation in an unbalanced and improper manner and that Ironside did not get told of the allegations against him nor was he given a chance to respond before the notice of hearing: factum, paras. 306 to 310. Even in the criminal law and Charter context, there is no clear duty to inform an investigation target of the case against him or provide him the chance to debate the potential charges beforehand [citations omitted] at para. 76:

76 First, the argument that fundamental fairness may require different standards in different contexts is evidenced by the different procedural protections that we generally accord to witnesses called to appear at hearings similar to that challenged in the present case. Although those conducting an investigation are always under a duty to act fairly, this Court has held that fairness in the context of such hearings does not require that the persons who are the "subjects" of the investigation participate in the examination of other witnesses, or that they be provided with an opportunity to adduce evidence or make submissions to the investigator: Roper v. Royal

Victoria Hospital, [1975] 2 S.C.R. 62, and Irvine v. Canada (Restrictive

Trade Practices Commission), [1987] 1 S.C.R. 181. See also

Ontario Securities Commission v.

Biscotti (1988), 40 B.L.R. 160 (Ont.

H.C.). [emphasis added] In

, 2009 CarswellBC 2953, 2009 BCCA

487, the Court held that the engineer under investigation was not entitled to insist on details of the nature of the investigation, prior to any issuance of the Notice of Inquiry

The Court held:

22 What was said there, however, applies to the Association as an investigating body with authority to investigate and discipline its members. What the Association conceded in goes only as far as establishing that before a decision is ultimately taken to discipline a member of the Association, the member is entitled to know the allegations against him and be given the opportunity to respond. does not assist Mr. Puar. It does not establish that, where the investigative function in a disciplinary process is distinct from the adjudicative function, as is the case here, procedural fairness requires the duty to disclose an allegation and afford the opportunity to be heard to be discharged at the investigative stage. While early disclosure may be useful, it is not normally required until the adjudicative stage where the member can expect to be afforded a hearing. [emphasis added]

In 2005 CarswellNfld 182, 2005 NLTD 112, the Court held that the investigation stage posed minimal prejudice to a member. The Court held:

33 The alleged failure on the part of the Law Society had to have occurred in the investigative process. It was purely an investigative process at that stage. … 35 At this investigative stage the Applicant's rights were not subject of public scrutiny. His rights were not subjected to a process that could have affected their limitation or disposition. ... 38 The investigation carried with it no power or authority to make a final determination nor anything that by procedure or substantive law authorized or called into play the possibility of finality in any sense for the Plaintiff.

In

2007 CarswellOnt 5110, [2007] O.J. No. 3156, the Court emphasized that an investigation is a mere screening process. As such, the professional college was not yet under a duty of full disclosure. The Court held:

30 illustrates the approach to be taken in reviewing the decisions of the Complaints Committee and of the Board. The central feature of the procedure against Dr. Botros is that the Committee was exercising a screening function: it was an investigation and a decision as to the existence of sufficient evidence to warrant referral. It was not a hearing to determine with finality what the facts were and whether punishment should be imposed. Accordingly, following the analytical approach of and of the scope of disclosure may be limited for the reasons permitted by the statute and relied on by the Board, including the protection of the interests of persons not parties. [emphasis added]

Decisions suggesting a more robust duty of fairness

The above decision appears clear and consistent. And yet, as sometimes occurs in a system of multiple provincial courts, other Canadian courts have strayed from the above reasoning, without providing a reasoned basis for such departure (or even explicitly acknowledging the above decisions).

In Swanson v. Institute of Chartered Accountants (Saskatchewan), 2007 CarswellSask 820, 2007 SKQB 480, the Court considered whether an accountant had been given enough particulars of the matters for which he was investigated (before a discipline hearing). The Court ultimately held that he had been given sufficient information, in his particular case. However, in so holding, the Court offered guidance on the duty of fairness at the investigation stage.

The Court recognized that there was indeed potential prejudice posed to a member at the investigation stage (something which the above decisions had declined to acknowledge):

74 Behind the relevance of the member having the opportunity to provide a response is the recognition of the adverse effect on the member of a decision to proceed to a hearing. The member's response to the allegation might lead to a decision not to proceed to a hearing, and so the member may avoid being exposed unnecessarily to the adverse effect of a charge and a hearing.

75 I conclude that, as a matter of its limited duty of fairness, the professional conduct committee owed a duty to Mr. to advise him of the matters being investigated

As such, the Court suggested that a member had to be given a “meaningful” opportunity to respond at the investigation stage:

80 The committee would not have fulfilled its duty if it had told Mr. only that it was investigating his audit in its entirety. To such an indication, Mr. Swanson could only respond that he did it all properly - an answer too general to have any effect. For Mr. Swanson to have a meaningful opportunity to respond, to have the opportunity to respond in a way that might prevent an unnecessary hearing being held, he must be given some particulars of an allegation to which he can provide a meaningful answer.

Similarly, in 2011 CarswellOnt 13247,

2011 ONSC 606, the Court held that the College was required, at the investigative stage, to provide the member with the substance of the allegations against her and receive an opportunity to make submissions in respect of the allegations (para 8). The Court held that had not been done. As a result, the matter was remitted to a differently constituted panel for fresh determination, with directions that the applicant be allowed to make submissions in respect of seven witness statements.

Practical suggestions:

What then should Colleges do in light of the above inconsistency? On the whole, the trend of Canadian caselaw suggests a limited duty of fairness, with no obligation to provide allegations to a member, and allow them to respond, during investigation.

However, there is enough divergence to render the matter unsettled. Moreover, there are practical reasons to suggest that a member should in fact receive notice of the allegations against them.

As such, this paper suggests the below framework:

1. Give the member the substance of all allegations against him, while under investigation;

2. In the event that the investigation discloses new allegations during its course, disclose those new allegations to the member forthwith;

3. Give the member an opportunity to respond to the ultimate “case” against them, before the investigation finally decides whether to proceed to a hearing.

The benefit of the above approach is increased practical saving of effort, and increased fairness. First, it reduces the likelihood that an expensive hearing is held unnecessarily. It benefits no one to charge a member, only to discover later there was determinative evidence all the while, which could have influenced the decision to hold a hearing.

Second, the legal benefit of the above approach is increased finality. If the member is given a chance to be heard during the investigation stage, that reduces the chance of procedural skirmishes later in the hearing, or later complaints about the entire process.

The above said, an investigation should not become a mini-trial. The member will not be entitled to cross-examine witnesses during the investigation, etc. But the mere fact of giving them the chance to make a written reply to the allegations, will benefit the entire process.

Dec 15 Treasurer Nomination Deadline (ladder position to President) Jan 12 Distinguished Service Award Presentation - Virtual Jan 25-27 CBA Saskatchewan 2022 Mid-Winter Meeting - Virtual Feb 7 CBA AGM - Virtual Feb 17 CBA Saskatchewan Council Meeting | 3:30-5PM - Virtual Jun 16 CBA Saskatchewan Annual Meeting - TBD

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