Courts Canadian Democratic Audit Ian Greene “For too many lawyers and judges, judging is still not regarded as the provision of a basic social service but the exercise of a private professional craft” –Peter Russell To what extent have Canadians built a court system that truly serves democracy? What goals might courts aim to achieve so that they better serve democracy?

The approach Most commentaries on the courts & democracy focus on judicial activism My approach –recognizes that courts always have and always will make policy. The essential question is, do they make policy in a way that supports democracy? –examines the courts as key institutions in our democracy, as well as the impact of judicial decisions. Do courts promote inclusiveness & participation? Are they responsive to the need for a fair, impartial, and expeditious dispute-resolution service?

Participation Opportunities: Judicial selection Courts administration Litigants & witnesses Members of juries Public interest group litigation Expert witness testimony Reality: Still very limited Almost none Ample, but hampered by delays & disrespect Jury system often abused Extensive, but evidence limited Extensive, but evidence misused, misunderstood

Inclusiveness Legal profession –Women are now Half of law school grads 1/3 of lawyers 4/5 of paralegals Nearly all lg secretaries –Aboriginals Need 4X lawyers Need 3X legal secs –Visible minorities Fair rep paralegs & sec Need 2X lawyers Judges –¼ are women (better than legis’s) –Need 4X Aboriginal judges –Visible minorites likely underrepresented, but situation improving

Inclusiveness (2) Court support staff –Women 2/5 of administrative positions 4/5 of clerks 9/10 of recorders and transcriptionists –Women earn significantly less than men in courts –Progress is being made, though gender stereotypes still persist. Aboriginal peoples –Equitably represented amongst court support staff Visible minorities: under- represented, but not as much as amongst lawyers

Inclusiveness (3) Litigants –Poor over-represented in criminal courts; rich over- represented in civil courts other than small claims –Cuts to legal aid in 1990s has led to increased numbers of self-represented litigants –We should look at expanding services provided by community legal aid clinics –Increasing numbers of Canadians choose to be self- represented, especially better-educated under 30. Courts responding by providing better information about relevant procedures.

Institutional responsiveness 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 In general, courts have applied the Charter to promote more inclusiveness and participation in Canadian society Decisions have resulted in greater inclusiveness for visible minorities, mentally and physically handicapped, gays & lesbians, & aboriginal Canadians. Judicial decisions have encouraged legislatures to work though appropriate balances for conflicting rights. Legislatures/executives can usually get their way with policy while respecting Court’s interpretation of rights.

“Inclusiveness” Decisions: who benefited? Singh: refugees, visible minorities Andrews: new Canadians Schachter: fathers wanting active parenting role Rodrigues: vulnerable disabled groups Eldridge: deaf (health care services) é: prisoners (voting)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) –Alberta Press Bill decision (1937) –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

Inclusiveness & Participation 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 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? –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