PROJECT SUMMARY

The Confidentiality & Privilege project began with concerns expressed by many RJ programs regarding parameters of confidentiality and privilege information in restorative practices.

The two main issues that were identified that RJ service providers face regarding liabilities to confidentiality and privilege are:

  1. Record Keeping
  2. Privilege Information

The project aims to examine the nuances of confidentiality and privilege in the context of restorative practices, identify the areas of potential liability for restorative justice programs, and developed template contracts as a tool for protecting against those potential liabilities.

The other project deliverables are:

  • Obtaining more information from RJ programs across the province on the type of case records they keep, and the procedures they follow regarding those records.
  • Seeking guidance from the Office of Information and Privacy Commissioner in BC in the applicability of both PIPA and FoiPPA to RJ programs.
  • Seeking guidance from justice stakeholders on the ownership of the records created by RJ programs.

The project also aims to examine Memorandum of Understanding documents (MOUs) between RJ programs and their referral sources because this is related to and can impact our obligations around record-keeping policies and practices. In September 2021, RJABC hosted a two-part community dialogue. At the first event, we had the opportunity to hear from Joel Gold, Deputy Regional Crown Counsel for Southern Vancouver Island and Gillian Lindquist, RJ Victoria. During that event, we received the announcement of a newly developed Memorandum of Understanding (MOU) by the Attorney General (AG)/Crown for RJ programs. At the second event, we had the opportunity to share and discuss questions about the new MOU, and examine where programs are at in working with the AG and/or their local Crown office. In addition to the discussions regarding the MOU by the Attorney General & Crown office for RJ programs, there have also been discussions among RJ programs and practitioners at various meetings about MOUs with police.

The concerns that relate to MOUs are:

  • RJ programs vary in their current relationships with referral sources (i.e. municipal police, RCMP, Crown)
  • There are only a few RJ programs that have MOUs that they themselves have developed to present to their partners (i.e. referral sources) when entering that partnership and rather they are reliant on partners for an MOU
  • MOUs that have been presented to RJ programs from referral sources have not necessarily been created in consultation

The primary purpose of developing the MOU template that we are presenting about today, aside from establishing the roles of the parties, is to establish a level of protection over program communications with participants, and information collected, used, and generated by the program against attempts to compel disclosure of information by the program. This session will take a detailed look at the template MOU and will aim to equip programs with the necessary tools and strategies to ensure that they can confidently negotiate effective MOUs that fulfill the necessary requirements to protect both programs and their participants against improper use of information and communications by referral sources.

PROJECT CONTRIBUTORS

This project would not be possible without the contributions of the following people:

  • Gillian Lindquist, Restorative Justice Victoria
  • Devon Black
  • Allen Peabody, Canadian Bar Association of BC
  • Josephine Amponsah, intern student from Adler University
  • Sam Frisbee
  • Partners and Associates of Island Law, and
  • Rachael Walsh, the team lead for this project.

RACHAEL WALSH, Project Lead

Rachael Walsh is an Associate Counsel at Island Law Office. Rachael was born on Vancouver Island and later moved to England where she received her law degree from Plymouth University in 2012. As a student, she took an interest in the field of capital defence and began working with Amicus-ALJ assisting US attorneys in defending death penalty cases. Her final year dissertation, which discussed the constitutionality of executing non-triggerman accomplices in the US, was published in two academic journals.  Days after her graduation, Rachael embarked on an internship with the Office of Capital Defence in Jackson, Mississippi where she investigated and prepared capital murder cases for trial. In 2013, she accepted a position as Mitigation Specialist with the Georgia Capital Defender (GCD) in Athens, GA. In her time with GCD, she represented more than a dozen capital defendants, preparing their cases for the penalty phase of trial. Rachael has lectured at Universities and conferences across England and the US, including the University of Oxford and the University of Georgia, on her work as a Capital Defender and being a woman in the legal field. After her homecoming to Vancouver Island in 2021, Rachael joined Restorative Justice Victoria as the interim program manager to cover maternity leave before embarking on her journey to becoming a lawyer in BC. Rachel’s practice is diverse, specializing in solving complex problems but mainly focus on landlord and tenant disputes, civil litigation, and administrative law.