Courts Canadian Democratic Audit Ian Greene

1. “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? CourtsCanadian Democratic AuditIan Greene

2. 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?

3. 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 Participation

4. 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

5. 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 (2)

6. 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.

7. 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

8. 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.

9. 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 “Inclusiveness” Decisions: who benefited?

10. 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 “Participation” Decisions: who benefited?

11. 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 Inclusiveness & Participation

12. 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