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

1. Court Organization and ManagementMarch 22, 2012The Courts and Democracy Ian Greene

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

3. Responsiveness of Courts to expectations of Canadians • Two types of responsiveness: “institutional”, and “decision-making” • Quick review of “institutional,” pursued in Ch 4: • Most Canadians satisfied with their lawyers and with judges. • 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 • Judicial appointments: merit is replacing patronage. Still need reform of federal judicial appointments system • Discipline system works fairly well, but not well known • 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 • Decision-making Responsiveness: left- and right-wing “charterphobes” • Using judicial discretion to promote democracy re participation & inclusiveness

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

5. Courts have been challenging abuse of power decades before Charter: (Abuse of power restricts participation) Alberta Press Bill decision (1937) Padlock Law (Quebec ‘57) Roncarelli (1959) 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 “Participation” Decisions: who benefited?

6. Big M: members of minority religions & those with no religion 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 Electoral Boundaries (1991) 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 Inclusiveness & Participation

7. Courts • 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 • Need more public participation in judicial selection, courts administration • Need to tackle unnecessary delays • Better support for self-represented litigants • Need more respectful treatment for litigants, witnesses, & juries by the justice system

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

9. The Democratic Triangle • Montesquieu’s description of separation of powers too simplistic. • 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” • 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 3rd pty adv • 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.

10. Participation • 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 • Perhaps we could learn something from other jurisdictions, including civil law jurisdictions • 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)

11. Inclusiveness • 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 • 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)?

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

13. Judicial decision-making responsiveness • 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. • Overall, SCC’s decisions since 1982 have advanced democracy • 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.”

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