Theoretical Perspectives on Public Law and Administration

1. Theoretical Perspectives on Public Law and Administration GS/Law 6761 Fall 2007 Instructor: Ian Greene

2. Saturday, October 20, 2007 • Research issues: • If conducting interviews, fill out a research ethics form on the Faculty of Graduate Studies web page • Ensure anonymity of interviews • There needs to be “informed consent” to conduct the interview • Through an informed consent form or • a letter • See http://www.yorku.ca/grads/policies/ethics.htm

3. Topics for October 20 • Organizational theory • judicial discretion • judicial activism • Administrative law link: • Organizational structure often determines outcome as much as legal rules and training of adjudicators • Discretion is unavoidable. How should it be used? • What is activism & what is restraint? Are these meaningful concepts? If so, do we need more judges & administrative tribunal members who are activist or more who are restrained?

4. Adie & Thomas • Douglas Worndl: “The social meaning of organizational life” • Paul Thomas, University of Manitoba

5. David Dyzenhaus • Diane Therrien David Dyzenhaus, University of Toronto

6. Martin Friedland • Nora Ferrell • Martin Friedland, University of Toronto

7. Janice Gross Stein • Katherine Weaver Janice Gross Stein, University of Toronto

8. Margaret Allars • Pam Hillen • Margaret Allars, University of Sydney

9. McCormick & Greene • Liz Isajiw • Peter McCormick: B.A. (Alberta), M.A. (Toronto), D.Phil. (LSE) • Peter McCormick grew up in Lacombe, Alberta. He graduated from the University of Alberta in 1968, received his Master's degree from the University of Toronto in 1969, and graduated from the London School of Economics and Political Science in 1974. His Ph.D dissertation was entitled "Social Contract and Political Obligation: A Critique and Reinterpretation.” • Appointed to the Department of Political Science at the University of Lethbridge in 1975. He was Chair of the Department from 1980 to 1985, and became Chair again in 1996. His research interests include appellate courts, the constitutional law of federalism, political parties and voting behavior, provincial politics, and political theory.

10. Peter McCormick, Canada’s Courts • Patricia Pledge: “Winning and Losing in Canada’s Courts” • This chapter first appeared as a journal article • Featured on page 1 of Globe and Mail: “judges biased” • G&M editorial: shoddy research • My interviews at SCC: research service had read original article and advised judges that G&M summary was very inaccurate

11. Greene, Baar, McCormick, Szablowski & Thomas • Donna Miller: Final Appeal: “The Human Elements of Judicial Decision-making”

12. Knopff & Morton • Ryan Bell: Charter Politics Ted Morton, MLA, Alberta (formerly University of Calgary)

13. Michael Mandel • Nadya Tymochenko: The Charter of rights and the Legalization of Politics in Canada • Michael Mandel, York University

14. CJ Beverley McLachlin • Lydia Stewart: “Academe and the Courts: Prof. Mullan’s Contribution”

15. Greene: The Courts • Ian Greene: “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?

16. 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.

17. 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)

18. 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 do 30 to 100 hours a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

19. 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

20. 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.”

21. 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. Disrectful treatment is really abuse of power.