Court Organization and Management March 22, 2012 The Courts and Democracy Ian Greene

Group Presenters from last week who need to complete their presentations Johnson-White, Trisha Johnson-White, Trisha Ng, Melody Ng, Melody (Igor got his passport for the U.S. conference so can’t be present) (Igor got his passport for the U.S. conference so can’t be present)

Responsiveness of Courts to expectations of Canadians Two types of responsiveness: “institutional”, and “decision- making” Two types of responsiveness: “institutional”, and “decision- making” Quick review of “institutional,” pursued in Ch 4: Quick review of “institutional,” pursued in Ch 4: Most Canadians satisfied with their lawyers and with judges. Most Canadians satisfied with their lawyers and with judges. Canadian jurisprudence has made important contributions to international thinking about appropriate independence & impartiality. Canadian jurisprudence has made important contributions to international thinking about appropriate independence & impartiality. Too many patronage appointments, lack of independence, lack of qualifications amongst JPs & members of administrative tribunals Too many patronage appointments, lack of independence, lack of qualifications amongst JPs & members of administrative tribunals Judicial appointments: merit is replacing patronage. Still need reform of federal judicial appointments system Judicial appointments: merit is replacing patronage. Still need reform of federal judicial appointments system Discipline system works fairly well, but not well known Discipline system works fairly well, but not well known Need appropriate evaluations for judges Need appropriate evaluations for judges Need to tackle the delay problem through diversion, mediation, judicial & executive leadership, and reform of law society codes of ethics Need to tackle the delay problem through diversion, mediation, judicial & executive leadership, and reform of law society codes of ethics Decision-making Responsiveness: left- and right-wing “charterphobes” Decision-making Responsiveness: left- and right-wing “charterphobes” Using judicial discretion to promote democracy re participation & inclusiveness Using judicial discretion to promote democracy re participation & inclusiveness

Decision-making reponsiveness (Ch 5): “Inclusiveness” - who benefited? Singh: refugees, visible minorities Singh: refugees, visible minorities Andrews: new Canadians Andrews: new Canadians Schachter: fathers wanting active parenting role Schachter: fathers wanting active parenting role Rodrigues: vulnerable disabled groups Rodrigues: vulnerable disabled groups Eldridge: deaf (health care services) Eldridge: deaf (health care services) Sauvé (prisoners voting) Right to vote decisions: mentally handicapped, students limits to 3 rd party spending upheld in Harper decision (2004), upholding greater social equality in election process

“Participation” Decisions: who benefited? Courts have been challenging abuse of power decades before Charter: (Abuse of power restricts participation) Courts have been challenging abuse of power decades before Charter: (Abuse of power restricts participation) Alberta Press Bill decision (1937) Alberta Press Bill decision (1937) Padlock Law (Quebec ‘57) Padlock Law (Quebec ‘57) Roncarelli (1959) Roncarelli (1959) Morgentaler: regulation of abortion must respect dignity of women Morgentaler: regulation of abortion must respect dignity of women RJR MacDonald: tobacco companies benefitted; leg/exec branches hadn’t done adequate policy development. Mills: fair trial/privacy conflict: Court deferred to Parliament. People’s representatives (Leg/exec) better prepared than in MacDonald

Inclusiveness & Participation Big M: members of minority religions & those with no religion Big M: members of minority religions & those with no religion Edwards: left scope for prov gov’ts to create weekly day of rest Edwards: left scope for prov gov’ts to create weekly day of rest Keegstra/Zundel (hate speech): balance between promoting protection of vulnerable groups, and protecting freedom of expression Keegstra/Zundel (hate speech): balance between promoting protection of vulnerable groups, and protecting freedom of expression Electoral Boundaries (1991) Electoral Boundaries (1991) Butler/Sharpe: balance between protecting the vulnerable, and ensuring even the most nefarious characters are not subjected to abuse of power Butler/Sharpe: balance between protecting the vulnerable, and ensuring even the most nefarious characters are not subjected to abuse of power Symes/Thibaudeau: deference to Parliament supports popular gov’t, but sexual stereotypes not challenged Secession Reference: promotes participation and inclusivness re process of determining secession Gay Rights cases: promoted inclusivness & participation for gays/lesbians Native rights cases: generally promoted inclusiveness & participation for Aboriginal Canadians

Courts To what extent have Canadians built a court system that truly serves democracy? To what extent have Canadians built a court system that truly serves democracy? In some aspects, courts are doing very well. Charter decisions have generally promoted a more inclusive and participatory society. Courts are regarded as fair, and strong on independence, impartiality, & have appropriate discipline procedures In some aspects, courts are doing very well. Charter decisions have generally promoted a more inclusive and participatory society. Courts are regarded as fair, and strong on independence, impartiality, & have appropriate discipline procedures Need more public participation in judicial selection, courts administration Need more public participation in judicial selection, courts administration Need to tackle unnecessary delays Need to tackle unnecessary delays Better support for self-represented litigants Better support for self-represented litigants Need more respectful treatment for litigants, witnesses, & juries by the justice system Need more respectful treatment for litigants, witnesses, & juries by the justice system

Greene: The Courts, Ch 6 “The Courts and Democracy” “The Courts and Democracy” Court decisions have always had an impact on public policy. Court decisions have always had an impact on public policy. To what extent have these decisions promoted democratic values of inclusiveness & participation? To what extent have these decisions promoted democratic values of inclusiveness & participation? Are courts representative of diversity of Can society? Are courts representative of diversity of Can society? To what extent do they facilitate appropriate participation? To what extent do they facilitate appropriate participation? Are courts responsive to public demand for fair, impartial, expeditious dispute-resolution services? Are courts responsive to public demand for fair, impartial, expeditious dispute-resolution services?

The Democratic Triangle Montesquieu’s description of separation of powers too simplistic. Montesquieu’s description of separation of powers too simplistic. Judges need appropriate control over court administration or executive could interfere with judicial impartiality Judges need appropriate control over court administration or executive could interfere with judicial impartiality Courts need to be accountable for the quality of work they do – if accountabily means “ability to demonstrate publicly the quality of one’s work” Courts need to be accountable for the quality of work they do – if accountabily means “ability to demonstrate publicly the quality of one’s work” Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3 rd pty adv Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3 rd pty adv When the law is not clear, judges are necessarily “activist” When the law is not clear, judges are necessarily “activist” Judges are to resolve disputes fairly, impartially, expeditiously. They need to be able to demonstrate they are doing so. Judges are to resolve disputes fairly, impartially, expeditiously. They need to be able to demonstrate they are doing so.

Participation The courts exist to provide a public service; therefore lay persons need more effective input into judicial selection and court administration The courts exist to provide a public service; therefore lay persons need more effective input into judicial selection and court administration Effective public participation is hampered by unnecessary delays and adjournments Effective public participation is hampered by unnecessary delays and adjournments Perhaps we could learn something from other jurisdictions, including civil law jurisdictions Perhaps we could learn something from other jurisdictions, including civil law jurisdictions If jury system is to survive, it needs reform to prevent abuse If jury system is to survive, it needs reform to prevent abuse Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin) Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin)

Inclusiveness Law profession becoming more representative of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative. Law profession becoming more representative of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative. Lack of access to legal representation a major problem Lack of access to legal representation a major problem Should all lawyers be required to represent 100 cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)? Should all lawyers be required to represent 100 cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

Institutional Responsiveness Most Canadians satisfied with quality of judicial decisions Most Canadians satisfied with quality of judicial decisions System of justices of the peace is problematic System of justices of the peace is problematic Some administrative tribunals problematic (lack of independence and expertise) Some administrative tribunals problematic (lack of independence and expertise) Too much room for patronage in federal superior court appointments, & fed ct & SCC Too much room for patronage in federal superior court appointments, & fed ct & SCC Complaint avenues re judges not widely known Complaint avenues re judges not widely known Lawyers should be prohibited from using delay as a tactical weapon in codes of ethics Lawyers should be prohibited from using delay as a tactical weapon in codes of ethics

Judicial decision-making responsiveness Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in the Charter. Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in the Charter. Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society. Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society. Overall, SCC’s decisions since 1982 have advanced democracy Overall, SCC’s decisions since 1982 have advanced democracy Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment “To limit the judicial role in democracy would be to limit democracy itself.” “To limit the judicial role in democracy would be to limit democracy itself.”

Overall evaluation of courts Courts doing well in some areas of advanced reasoning Courts doing well in some areas of advanced reasoning Contribution to understanding of independence & impartiality, interpretation of Charter Contribution to understanding of independence & impartiality, interpretation of Charter Areas for improvement Areas for improvement Public participation in court admin & jud selection Public participation in court admin & jud selection Tackling unnecessary delay Tackling unnecessary delay Support for unrepresented litigants Support for unrepresented litigants Respectful treatment of juries, witnesses & litigants. Disrespectful treatment is really abuse of power. Respectful treatment of juries, witnesses & litigants. Disrespectful treatment is really abuse of power.