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Problem-Solving Courts, The Future of

Justice in Canada
Rhys Molander
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Since their first introduction in the 1980s during the War on Drugs the

‘problem-solving’ approach to court cases has become extremely popular, in 2018

“there are nearly 4,000 problem solving courts in the United States.” (Dollar, Ray,

Hudson, & Hood, 2018, p. 32). Despite the expansion of the problem-solving model,

which exist in eight out of ten provinces in Canada (J. McDonald, ‘​In the battle against

alcohol addiction, one court aims to turn around lives​,’ ​CBC, ​2018), the ideals of the

approach, which are based in resolution, have still not penetrated much of the court

system. In ‘Delivering Justice Today: A Problem-Solving Approach,’ Kaye states that

most of the cases brought to court are very mundane and that despite the work of

judges to deliver justice, the current system has led people to appear multiple times for

different reasons as their lives spiral. I believe that this is because the current system of

justice is built on the idea of justice as a punishment rather than a form of resolution.

This view of justice is supported by policies such as mandatory minimum sentences and

the death penalty in the United States. The best approach that averts this is the

‘problem solving model.’

The greatest difference between traditional models and the ‘problem-solving’

model is that while traditional models rely on a divisive system where the results benefit

one side more than the other, the problem-solving is based on finding and dealing with

the roots of an issue as defined in the book​ ​Canadian Courts​ by L. Hausegger, M. Hennigar

and T. Riddell. ​This system, rather than just sending the accused into the penal system,

takes steps to improve the situation through resolution and reformation. This
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reorientation changes the situation of a judge from someone who may decide the

punishment to someone who participates in helping someone. This is helped by the

findings in the article ‘Examining changes in procedural justice and their

influence on problem-solving court outcomes’ which found that most defendants stated

that they were “fairly and with respect.” (Dollar CB, Ray B, Hudson MK, Hood BJ.

‘Examining changes in procedural justice and their influence on problem-solving court

outcomes,’ p. 40) The same article also states that the relationship between the

defendant and the judge is paramount to the success of treatment. This is because the

judge is the main oversight of the program who is described by Professor Gill McIvor as

a ‘caring, authoritarian, guardian.’

This could definitely be an improvement to marginalized communities who are

overrepresented in prisons, specifically indigenous people in Canada, who according to

the Macleans article, “Canada’s prisons are the ‘new residential schools’” made up

22.8% of the total incarcerated population. In the same article, a new system based on

the coming up of a ‘healing plan.’ The First Nation’s Court in New Westminster is less

formal than the tradition courts and it works as well as reoffense rates are relatively low.

The fact that the defendants are primarily getting help through a multitude of

participating services and support is the greatest attribute of the problem solving

approach. The problem solving approach can break the cycle of incarceration and while

it may not directly deal with issues of police racism it can reduce racism in the court by

applying a more culturally appropriate method. Pimicikamak Chief Cathy Merrick said in
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a 2017 CBC article that “​The white man laws do not work for my people. The white man

systems do not work for my people.”

Despite its successes the problem-solving model has been limited in scope to

mostly dealing in the areas of mental health and addiction when it could be used with a

much larger range, specifically in the areas of petty crimes and gang violence, both of

which tend to symptoms of a much greater issue. Jennie Ward in her article ‘Are

Problem-Solving Courts the Way Forward for Justice’ explains that the ability for the

subject to have input and make their own choices in their treatment. The addition of

choices may make treatment more palatable to those would normally not seek it,

especially given the choice between treatment and jail time.

All is not well with the problem-solving model with many criticisms, one that

especially rings true to me is in Leslie Eaton and Leslie Kaufman’s article in the New

York Times ‘In Problem-Solving Court, Judges Turn Therapist’ where critics detail that

judges are having too much influence on the everyday lives of poor people and people

of colour and are taking a ‘inquisitorial’ stance as a New York Supreme Court Justice

described it. It is true, the judges in these situations are having much more influence in

matters that they may not be knowledge about. The solution I see to this is to take a

technocratic stance on what is normally seen as a fundamental element of the courts,

the judges. Judges should be specialized in the areas that they service and not just in

the area of law. If they’re going to play therapist then they actually should be one. There
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should also be more emphasis on one’s lived experiences, as the life of a trans black

woman is going to be much different from that of a cis white man. Focusing entirely on

one’s knowledge of the law over their experiences and views can seriously lead to a

lack of empathy in the courtroom. The trend of assuming guilt in the problem-solving

model is a major issue, but it also exists in conventional courts as well with a bias

against marginalized and poor communities, certainly so in the United States. This

would require a total reform of the justice system, one that is desperately needed and

definitely would not involve going back towards the prison-industrial complex.
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Bibliography

Dollar, C. B., Ray, B., Hudson, M. K., & Hood, B. J. (2018). Examining changes in

procedural justice and their influence on problem-solving court outcomes.

Behavioral Sciences & the Law,36​(1), 32-45. doi:10.1002/bsl.2329

Eaton, L., & Kaufman, L. (2005, April 26). In Problem-Solving Court, Judges Turn

Therapist. ​New York Times.​

Golwacki, L. (2017, November 2). Chiefs offer solutions to high Indigenous

incarceration rates at 'historic' meeting with judges. ​CBC News​.

Hausegger, L., Riddell, T. Q., & Hennigar, M. A. (2015). ​Canadian courts: Law,

politics, and process​. Don Mills, Ontario: Oxford University Press Canada.

Kaye, J. S. (2004). Delivering Justice Today: A Problem-Solving Approach. ​Yale Law

& Policy Review,22​(1).

MacDonald, N. (2016, February 18). Canada’s prisons are the ‘new residential

schools’. ​Maclean's.​
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McDonald, J. (2018, September 27). In the battle against alcohol addiction, one court

aims to turn around lives. ​CBC News.​

Ward, J. (2014). Are problem-solving courts the way forward for justice? ​The Howard

League for Penal Reform​. Retrieved from

https://jpo.wrlc.org/bitstream/handle/11204/3677/Are Problem-Solving Courts the

Way Forward for Justice.pdf?sequence=3.