Court Organization and Court Organization and ManagementManagement

March 22, 2012March 22, 2012 The Courts and DemocracyThe Courts and Democracy

Ian Greene

Group Presenters from last week who Group Presenters from last week who need to complete their presentationsneed to complete their presentations

Johnson-White, TrishaJohnson-White, Trisha Ng, MelodyNg, Melody (Igor got his passport for the U.S. (Igor got his passport for the U.S.

conference so can’t be present)conference so can’t be present)

Responsiveness of Courts to Responsiveness of Courts to expectations of Canadiansexpectations of Canadians

Two types of responsiveness: “institutional”, and “decision-Two types of responsiveness: “institutional”, and “decision-making”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 Canadian jurisprudence has made important contributions to

international thinking about appropriate independence & impartiality.international thinking about appropriate independence & impartiality. Too many patronage appointments, lack of independence, lack of Too many patronage appointments, lack of independence, lack of

qualifications amongst JPs & members of administrative tribunalsqualifications amongst JPs & members of administrative tribunals Judicial appointments: merit is replacing patronage. Still need reform Judicial appointments: merit is replacing patronage. Still need reform

of federal judicial appointments system of federal judicial appointments system Discipline system works fairly well, but not well knownDiscipline system works fairly well, but not well known Need appropriate evaluations for judgesNeed appropriate evaluations for judges Need to tackle the delay problem through diversion, mediation, judicial Need to tackle the delay problem through diversion, mediation, judicial

& executive leadership, and reform of law society codes of ethics& 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 & inclusivenessUsing judicial discretion to promote democracy re participation & inclusiveness

Decision-making reponsiveness (Ch 5): Decision-making reponsiveness (Ch 5): “Inclusiveness” - who benefited? “Inclusiveness” - who benefited?

Singh: refugees, Singh: refugees, visible minoritiesvisible minorities

Andrews: new Andrews: new CanadiansCanadians

Schachter: fathers Schachter: fathers wanting active wanting active parenting roleparenting role

Rodrigues: vulnerable Rodrigues: vulnerable disabled groupsdisabled groups

Eldridge: deaf (health Eldridge: deaf (health care services)care services)

Sauvé (prisoners Sauvé (prisoners voting)voting)

Right to vote Right to vote decisions: mentally decisions: mentally handicapped, students handicapped, students

limits to 3limits to 3rdrd party party spending upheld in spending upheld in Harper decision Harper decision (2004), upholding (2004), upholding greater social equality greater social equality in election processin election process

““Participation” Decisions: who Participation” Decisions: who benefited?benefited?

Courts have been Courts have been challenging abuse of challenging abuse of power decades before power decades before Charter: (Abuse of Charter: (Abuse of power restricts power restricts participation)participation) Alberta Press Bill decision Alberta Press Bill decision

(1937)(1937) Padlock Law (Quebec ‘57)Padlock Law (Quebec ‘57) Roncarelli (1959)Roncarelli (1959)

Morgentaler: regulation Morgentaler: regulation of abortion must of abortion must respect dignity of respect dignity of womenwomen

RJR MacDonald: RJR MacDonald: tobacco companies tobacco companies benefitted; leg/exec benefitted; leg/exec branches hadn’t done branches hadn’t done adequate policy adequate policy development.development.

Mills: fair trial/privacy Mills: fair trial/privacy conflict: Court conflict: Court deferred to Parliament. deferred to Parliament. People’s People’s representatives representatives (Leg/exec) better (Leg/exec) better prepared than in prepared than in MacDonaldMacDonald

Inclusiveness & ParticipationInclusiveness & Participation Big M: members of minority Big M: members of minority

religions & those with no religions & those with no religionreligion

Edwards: left scope for Edwards: left scope for prov gov’ts to create prov gov’ts to create weekly day of restweekly day of rest

Keegstra/Zundel (hate Keegstra/Zundel (hate speech): balance between speech): balance between promoting protection of promoting protection of vulnerable groups, and vulnerable groups, and protecting freedom of protecting freedom of expressionexpression

Electoral Boundaries (1991)Electoral Boundaries (1991) Butler/Sharpe: balance Butler/Sharpe: balance

between protecting the between protecting the vulnerable, and ensuring vulnerable, and ensuring even the most nefarious even the most nefarious characters are not characters are not subjected to abuse of subjected to abuse of powerpower

Symes/Thibaudeau: Symes/Thibaudeau: deference to Parliament deference to Parliament supports popular gov’t, but supports popular gov’t, but sexual stereotypes not sexual stereotypes not challengedchallenged

Secession Reference: Secession Reference: promotes participation and promotes participation and inclusivness re process of inclusivness re process of determining secessiondetermining secession

Gay Rights cases: Gay Rights cases: promoted inclusivness & promoted inclusivness & participation for participation for gays/lesbiansgays/lesbians

Native rights cases: Native rights cases: generally promoted generally promoted inclusiveness & inclusiveness & participation for Aboriginal participation for Aboriginal CanadiansCanadians

CourtsCourts To what extent have Canadians built a To what extent have Canadians built a

court system that truly serves democracy?court system that truly serves democracy? In some aspects, courts are doing very well. In some aspects, courts are doing very well.

Charter decisions have generally promoted a Charter decisions have generally promoted a more inclusive and participatory society. more inclusive and participatory society. Courts are regarded as fair, and strong on Courts are regarded as fair, and strong on independence, impartiality, & have appropriate independence, impartiality, & have appropriate discipline proceduresdiscipline procedures

Need more public participation in judicial Need more public participation in judicial selection, courts administrationselection, courts administration

Need to tackle unnecessary delaysNeed to tackle unnecessary delays Better support for self-represented litigantsBetter support for self-represented litigants Need more respectful treatment for litigants, Need more respectful treatment for litigants,

witnesses, & juries by the justice systemwitnesses, & juries by the justice system

Greene: Greene: The Courts, The Courts, Ch 6Ch 6

““The Courts and Democracy”The Courts and Democracy” Court decisions have always had an impact on Court decisions have always had an impact on

public policy. public policy. To what extent have these decisions promoted To what extent have these decisions promoted

democratic values of inclusiveness & participation?democratic values of inclusiveness & participation? Are courts representative of diversity of Can Are courts representative of diversity of Can

society?society? To what extent do they facilitate appropriate To what extent do they facilitate appropriate

participation?participation? Are courts responsive to public demand for fair, Are courts responsive to public demand for fair,

impartial, expeditious dispute-resolution services?impartial, expeditious dispute-resolution services?

The Democratic TriangleThe Democratic Triangle Montesquieu’s description of separation of powers too Montesquieu’s description of separation of powers too

simplisticsimplistic.. Judges need appropriate control over court administration Judges need appropriate control over court administration

or executive could interfere with judicial impartialityor executive could interfere with judicial impartiality Courts need to be accountable for the quality of work they Courts need to be accountable for the quality of work they

do – if accountabily means “ability to demonstrate publicly do – if accountabily means “ability to demonstrate publicly the quality of one’s work”the quality of one’s work”

Often, critics of “judicial activism” are critical only when a Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike of activist judges, even though he used the courts to strike down Elections Act prohibition of 3down Elections Act prohibition of 3rdrd pty adv 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, Judges are to resolve disputes fairly, impartially,

expeditiously. They need to be able to demonstrate they expeditiously. They need to be able to demonstrate they are doing so.are doing so.

ParticipationParticipation

The courts exist to provide a public service; The courts exist to provide a public service; therefore lay persons need more effective input therefore lay persons need more effective input into judicial selection and court administrationinto judicial selection and court administration

Effective public participation is hampered by Effective public participation is hampered by unnecessary delays and adjournmentsunnecessary delays and adjournments

Perhaps we could learn something from other Perhaps we could learn something from other jurisdictions, including civil law jurisdictionsjurisdictions, including civil law jurisdictions

If jury system is to survive, it needs reform to If jury system is to survive, it needs reform to prevent abuseprevent abuse

Use of social science evidence in court open to Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & abuse (eg court’s misuse of evidence in Askov & Morin)Morin)

InclusivenessInclusiveness Law profession becoming more Law profession becoming more

representative of Canadian diversity, but representative of Canadian diversity, but more work to be done. Similarly, judiciary more work to be done. Similarly, judiciary and court support staff becoming more and court support staff becoming more representative.representative.

Lack of access to legal representation a major Lack of access to legal representation a major problemproblem Should all lawyers be required to represent Should all lawyers be required to represent

100 cases a year pro bono? Should 100 cases a year pro bono? Should community legal clinics be expanded (and community legal clinics be expanded (and an effective public defender model an effective public defender model implemented)?implemented)?

Institutional ResponsivenessInstitutional Responsiveness

Most Canadians satisfied with quality of judicial Most Canadians satisfied with quality of judicial decisionsdecisions

System of justices of the peace is problematicSystem of justices of the peace is problematic Some administrative tribunals problematic Some administrative tribunals problematic

(lack of independence and expertise)(lack of independence and expertise) Too much room for patronage in federal Too much room for patronage in federal

superior court appointments, & fed ct & SCCsuperior court appointments, & fed ct & SCC Complaint avenues re judges not widely knownComplaint avenues re judges not widely known Lawyers should be prohibited from using delay Lawyers should be prohibited from using delay

as a tactical weapon in codes of ethicsas a tactical weapon in codes of ethics

Judicial decision-making Judicial decision-making responsivenessresponsiveness

Courts perform an essential function by adjudicating Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in disputes about basic democratic values, such as those in the Charter. the Charter.

Charter decisions have resulted in greater inclusion of Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society.& lesbians, and Aboriginals in Canadian society.

Overall, SCC’s decisions since 1982 have advanced Overall, SCC’s decisions since 1982 have advanced democracydemocracy

Our constitution allows legislatures to counterbalance Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, judicial decisions – s. 33, re-enacting legislation, amendmentamendment

““To limit the judicial role in democracy would be to limit To limit the judicial role in democracy would be to limit democracy itself.”democracy itself.”

Overall evaluation of courtsOverall evaluation of courts Courts doing well in some areas of Courts doing well in some areas of

advanced reasoningadvanced reasoning Contribution to understanding of independence Contribution to understanding of independence

& impartiality, interpretation of Charter& impartiality, interpretation of Charter Areas for improvementAreas for improvement

Public participation in court admin & jud Public participation in court admin & jud selectionselection

Tackling unnecessary delayTackling unnecessary delay Support for unrepresented litigantsSupport for unrepresented litigants Respectful treatment of juries, witnesses & Respectful treatment of juries, witnesses &

litigants. Disrespectful treatment is really litigants. Disrespectful treatment is really abuse of power.abuse of power.