Chapter 1

The Courts and Democracy

The challenge of this book is to audit the performance of Canadian courts as an integral institution of our democracy. This is an ambitious task, not undertaken without a great deal of trepidation. I come from a family composed disproportionately of auditors and accountants. Wishing to avoid what I considered to be a dreary profession, and fascinated by constitutional crises, I became a political scientist. But over the years, I have learned to admire auditors, even to the point of marrying one. I have come to appreciate that the task of the audit is to describe succinctly the reality of an organization=s performance, to draw attention to procedures that might too easily permit unethical practices, waste, or ineffectiveness, and to recommend future improvements that are intended to assist the organization in achieving its goals more fully. I have learned that although auditors are usually feared like dentists (the other line of work in my family that I forsook for the study of politics), good auditors can help organizations, and the people in them, to achieve their goals. A good audit can result in employees with a higher sense of personal satisfaction with their work, and higher levels of approval from the public served by the organization.

In conducting an audit of Canada's courts, we are dealing with a unique set of interrelated organizations which together make up the third branch of government. The courts do not constitute just another organization. It is essential for the health of Canadian democracy that the courts effectively support, protect and promote democratic values. A public that is approving of the courts, and the personal satisfaction of judges, lawyers and court staff because of knowledge that their work satisfies high performance standards are important, but they pale in comparison with the question of whether the courts system is achieving its essential goal: to resolve disputes fairly, effectively and efficiently according to democratic norms.

The first task of the auditor is to outline the contours of the organization being audited, and to describe its goals. Consequently, this first chapter will provide a portrait of Canada=s courts and their purpose as a central part of Canada=s democratic system. This book is part of a larger project -- the Canadian Democratic Audit -- which has chosen the benchmarks of participation, responsiveness and inclusiveness as tools to audit the current state of Canadian democracy. Consequently, Chapter Two will review the nature of, and opportunities for public participation in Canada=s courts. Chapter three will examine the extent to which the major actors in the courts -- judges, lawyers, court staff, and litigants -- are representative of Canadian society, as an indicator of the inclusiveness of the court system. Chapter four will focus on the extent to which the courts are responsive to public demands for a fair and effective dispute-resolution service. The final chapter will provide this auditor=s recommendations for improvements which, it is hoped, will result in a court system that will more effectively meet the needs of Canadian democracy.

In conducting this audit of courts as vital institutions of Canadian democracy, there will be several standards for evaluation. There will be comparisons over time, grounded in an analysis of the basic theoretical principles behind democracy, that indicate to what extent the courts have evolved toward conformity with these basic principles as Canada proceeds along the road to a more comprehensive democracy. There will be analysis of how well the courts are doing in comparison to public expectations for an impartial, fair, effective and expeditious dispute-resolution service. Finally, there will be comparisons of the current state of Canadian courts with the situation of courts in other western democracies.

The standard against which the courts will be audited is the goal of serving a democracy which is based, as much as humanly possible, on the principle of mutual respect. Mutual respect means that the dignity of every individual is equally valued -- thus resulting in governments accountable to elected legislatures, the rule of law, and an independent and impartial system of courts to adjudicate disputes under the law. My perspective is that democracy is something toward which our society has been evolving for centuries. True democracy may never be fully realized because of human frailties, but it is a goal worth striving for. The courts, as the state's officially-sanctioned institutions for dispute-resolution, have been around since centuries before democratic times, and thus they have inherited a tendency to be hierarchial and elitist. Peter Russell, the father of the political science study of the law, has noted that "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." (Russell, 1975) The purpose of this audit is to provide an estimate of how far we have come along the road toward a court system that serves democracy optimally, and to indicate some of the goals that the courts need to aim for during the future century.

<1>The role of the courts in a democracy

It is easy to overlook the importance of the courts in making Canadian democracy work because the courts are not partisan or Apolitical@ in the sense that legislatures and executives are. However, if we look at the court systems of the countries of Eastern Europe immediately after the fall of communism, the crucial role of courts in democracy becomes clearer. Under communism, the courts were not necessarily intended to be impartial. Judges and lay assessors were often appointed because of their support for the party rather than because of their expertise, and they were expected to bend to political pressures from the executive whenever the executive had an interest in the outcome. When the authoritarian regimes were replaced by elected governments that oversaw a system of laws that were intended to be applied even-handedly, many citizens had difficulty believing that the discredited court system could provide impartial justice dispensed in a competent fashion.

I was struck by the importance of courts in making democracy work when visiting Czechoslovakia in 1990, shortly after the Velvet Revolution. I was fortunate enough to be granted an interview the Vice-President of the Federal Court, the country's top court. We had a wide-ranging discussion about the role of the Czech and Slovak courts in building democracy. One of the major challenges, according to the court's Vice-President, was to turn the courts into a credible institution after forty years during which they were regarded simply as an extension of an authoritarian government that was anything but impartial. The concept of the rule of law was meaningless unless the courts could gain a reputation for applying the law fairly. Even if the judges did, in fact, apply the law impartially, how could the wide-spread perception that most judges were simply biased spokespersons for the old regime be overcome? Without a court system that works and is respected, the work of legislatures and executives in creating just laws can come to nothing.

On the surface, the role of courts in a democracy is simply to resolve the disputes that legislatures have made it the responsibility of courts to settle. However, the dispute-resolution purpose of courts dates from well before democratic times. It is important to understand the evolution of courts in the context of their long pre-democratic history in order to sort out what is the democratic role of courts, and what is the dispute-resolution function of courts that could apply either to democratic or non-democratic regimes.

<2>Development of the dispute-resolution function of courts:

Once a society reaches a certain state of complexity, there is a need for an institutional means for resolving disputes. Canadian aboriginal societies prior to European contact had sophisticated dispute-resolution procedures based on the authority of elders and consensual decision-making by male or female councils. Some of the references to the judges of the Old Testament indicate that they were preoccupied with problems similar to those of today: the quest for fairness in settling disputes, and the question of how to eliminate unacceptable backlogs of cases. (Exodus 18: 13-27) The Greeks developed a sophisticated system of law both to settle internal disputes, and to govern commercial relations among city-States. As Rome expanded at the beginning of the 3rd Century B.C., the dispute resolution system was such that a person wanting to settle a dispute through formal means could initiate a legal action before patrician priests, who would decide the outcome. By about 250 B.C., the formal procedures developed by the priests to resolve disputes were written down. At the end of the century, popular assemblies divided according to class attained the power to approve new laws proposed by magistrates. As the empire developed, there was a demand for a more universal system of commercial law, and the Romans adopted some of the more successful laws developed in the Greek city-States. As in every developing civilization, the system of law became more and more complex, and as a response there was a movement to codify the law in order to clarify it during the fifth and sixth centuries A.D. These codes continued in Germanic law and the Eastern Empire, and were revived by other continental powers from the time of the renaissance. Roman law even had an impact on the development of commercial law in Britain.

Skipping ahead to the Norman conquest in 1066, disputes about the application of the king=s law in Norman England were settled by the king himself to begin with, or by king and council. The central royal courts and the circuit courts were established beginning in the twelfth century as a response to the fact that the ever-increasing caseload became too heavy for the king's council to handle. (Holdsworth) These central courts and circuit courts created by the monarch became known as "superior" courts, while local courts were referred to as "inferior" courts. In the beginning, Norman superior court judges were clerics, but after a bribery scandal led to many of them being fired in the late 13th century, the king began to appoint men from the newly-developing legal profession to take their places. The experiment proved successful, and by the middle of the 14th century, it became the established tradition for the king to select the superior court judges from the ranks of experienced lawyers. (Dawson) This system of selecting judges from among the ranks of mature lawyers contrasted with the approach that developed later on the European continent, which was to create training schools for judges that were separate from the ones established for lawyers. On the continent, young graduates from the schools for judges were appointed to the lower courts, and could be promoted up the judicial system according to their ability. (Abraham)

In England and Wales, from the fourteenth century onward superior court judges became increasingly expert in the art of judging, and therefore they naturally tended to resent having their decisions overruled from time to time by the monarch. Of course, in the pre-democratic era, the king or queen, possessing absolute authority, had the power to overrule either the courts or parliament. The absolutist system ended with the Glorious Revolution of 1688, and the creation of a constitutional, or limited, monarchy. One element of the constitutional monarchy was the supremacy of Parliament as the supreme law-making body. Another was the guarantee of the independence of the superior court judges in the Act of Settlement of 1701. Henceforth, superior court judges were to be appointed "during good behaviour," and could be removed only by Parliament. As well, their salaries were to be determined by Parliament, and not by an executive that might meddle with judicial salaries in order to control the judges. Philosopher John Locke defended the emerging democratic regime in which a legislature selected by the people would have the sole power to create the law -- a law to be applied even-handedly and without bias. This system, referred to as the Arule of law,@ depended on the supremacy of the legislature over the law, and the ability of judges to apply the law impartially. (Locke) The political philosophy which advanced the rule of law became known as liberalism, and it stressed the values of freedom and equality.

The post Glorious Revolution conception of Athe people@ was different from ours; only men of property could vote. However, once the concept of equality gained popular support, demands for an implementation of equality that applied to all citizens proved irresistible. As a result, property qualifications were ended in Britain and Canada in the late nineteenth century, and the franchise was extended to women in the first half of the twentieth century. Because of worries about whether extending the vote to aboriginal Canadians would restrict their treaty rights, aboriginal Canadians living on reserves were not enfranchised until 1960. Beginning in 1982, Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality before and under the law, has resulted in a further extension of the doctrines of equality and the rule of law. For example, Canada's Supreme Court will no longer tolerate a government policy that excludes homosexuals from the protection of human rights laws, (Vriend, 1998) or that denies deaf persons from the equal benefit of public health services because of not having access to an interpreter. (Eldridge, 1997)

As the foregoing account shows, courts as governmental institutions seem to be necessary in all societies with complex and hierarchical political structures, whether or not they are democracies. As an authoritarian society evolves toward democracy, the nature of courts changes to reflect democratic values. First and foremost, the independence of courts from the executive and legislative branches of government is valued and promoted in democracies. As well, responsiveness to the public's right to fair and considerate treatment becomes more important than in authoritarian regimes. Furthermore, the broader participation of the public in providing relevant information for judicial decisions and for evaluating the performance of courts is expected, and the key personnel in courts are expected to be more representative of the general public. For example, it is expected that judicial selection procedures that are based on merit rather than patronage will promote a more representative judiciary.

Although the resolution of disputes impartially and according to law is the central purpose of courts in a democracy, there are other factors that also need to be considered in an audit of the courts. The judicial process, in addition to dispensing justice fairly and impartially, needs to be expeditious in order to be responsive, and to treat all participants with respect. With regard to the participation criterion, access to justice is important to consider: do the courts provide equal access to justice to all groups in society without discrimination -- direct or indirect -- based on factors such as gender, wealth, race, or ethnic background? Finally, the public perception of the courts is nearly as important in generating a positive reputation for courts as the actual results of judicial decisions. Unless the judiciary and other key actors in the courts are broadly representative of the contours of our society, the courts are not likely to be regarded as an institution that has the capacity to settle disputes without favouring the parts of society that the judges appear to be mostly drawn from.

Courts can never avoid a law-clarification function in some cases, and this role is tantamount to law-making. The law is composed of words, and many words and phrases are open to two or more equally legitimate interpretations. Judges must choose the interpretation that to them appears to be the most just. However, if the courts have a law-making function, does this not contradict the principle of the rule of law? It is now recognized that the law-making function is more complex than realized in John Locke's time. Elected legislatures are the only legitimate source of "primary" laws, but they can delegate a law-refining or law clarification functions to "secondary" bodies such as cabinets, municipal councils, or regulatory tribunals. (Hogg) Courts in a sense create secondary laws through the interpretation of primary legislation, or the interpretation of the secondary legislation of other bodies. In the end, the rule of law is maintained as long as elected legislatures have the power to alter secondary legislation, and thus maintain ultimate control. In a federal system, the rule of law becomes even more complex, because there is a written constitution that is a superior law, and the constitution can only be altered by the joint action of several elected legislatures working together. The crucial point is that the law-making function of courts, in order to be legitimate in the democratic context, needs to be exercised in accord with basic democratic principles. What are these basic democratic principles in the Canadian context?

A simple definition of democracy is a system of government that is controlled by the people. However, it is necessary to go beyond this simple definition in order to work through questions about how to put democracy into practice, and in order to consider the work of courts as part of a democratic system. There are many questions that the simple definition leaves unanswered. For example, what can justify age restrictions to the franchise, or constituencies with vastly different population sizes? If an election results in a great imbalance of male over female elected members, is it still government "by the people?" Can a majority enact laws to assimilate a minority or to force it to comply with majority values? To what extent does government "by the people" require consensus, and when can majority legitimately force compliance with a minority? Is it acceptable to limit the procedural rights of accused persons in criminal courts during a time of war, or in order to combat terrorism? These kinds of questions cannot be answered simply by thinking of democracy as government "by the people." It is necessary, therefore, to think about the principles behind the concept of democracy.

As noted above, the philosophical justification Glorious Revolution of 1688 provided by John Locke emphasized the values of equality and freedom. These values were stressed out of respect for the inherent worth of every human being, a concept that Locke derived both from his studies in theology and from his reasoning about how rational human beings would behave in a "state of nature." Locke's concept of the "state of nature" was based partly on his understanding of the structures of consensual decision-making and equality of aboriginal governments in the Americas. (Ladner) In a society in which we value the equal worth of every individual, then we ought to accord to individuals as much freedom as possible to pursue their own agendas in life, compatible with the equal rights of others -- a mutuality of respect.

It can therefore be argued that democracy can usefully be viewed as government based on the principle of mutual respect. (Greene et al., 1997, and 1998) Mutual respect implies the intrinsic worth and equal importance of every individual in society. Ronald Dworkin, a contemporary legal theorist, put it this way: A...individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them .... [T]hey possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.@ (Dworkin, 1978) This principle certainly implies selection of governments through fair and open elections, and the rule of law, and the even application of the law. If democracy means only this, however, such a narrow definition places the courts in an uncertain position vis-a-vis democracy because the courts cannot avoid a law-making function when the law is unclear. As well, this narrow definition lets the courts off the hook when it comes to other duties that intuitively seem important from a democratic perspective, such as the need for courts to dispense expeditious justice, to provide equal access to justice, and to be representative.

If democracy is viewed more broadly as government based on the principle of mutual respect, then it becomes evident that democracy involves more than fair elections and the rule of law. Other important corollaries of mutual respect with regard to democratic institutions include the principle of social equality, respect for minority rights, the need for fair procedures both in applying the law and in policy-making, respect for personal freedoms and privacy, and the need for all public officials to act with integrity, i.e. to behave honestly in a manner which puts the public interest ahead of private interests.

From the vantage point of mutual respect, the potential tension between democracy and judicial law-making becomes less of an issue. Rather, what becomes important is whether the courts perform functions involving discretion so that the principle of mutual respect is honoured. There is a necessary role in a democracy for partisan elected legislatures to create and revise the law, and also for impartial judges to interpret and apply the law so as to ensure respect for minorities and the disadvantaged. As well, the principled definition of democracy implies responsibilities for the courts based on participation, responsiveness and inclusiveness that are not so evident from the perspective of the simple definition of democracy as "government controlled by the people." For example, how responsive are the courts to the public demand for expeditious justice? To what extent are the democratic goals of participation and inclusiveness translated into equal access to justice? In order to address these questions, it is important to get a snapshot view of the Canadian court system.

<1>The Canadian court system

Adjudication is a process in which disputes that the government has chosen to manage are authoritatively settled -- or concerning which settlements are ratified -- according to law by an impartial judge. In Canada, the authority for the administration of adjudicative matters is split between the federal and provincial governments, but it is not split along division of powers lines as in the United States. The fathers of the Canadian confederation had observed the difficulties encountered by Americans because of their creation of a separate system of courts to handle cases arising out of federal laws which operated parallel to the state and municipal courts. Canada opted for a court system that would be primarily unitary, capable of settling disputes arising out of both federal, provincial and municipal laws. Therefore, both orders of government were allocated specific responsibilities for maintaining the unitary court system by the 1867 constitution.

The federal government was assigned responsibility for the appointment of "superior" court judges (provincial superior court trial judges, provincial appellate judges and the Supreme Court of Canada), while the provinces retained control over the appointment of all Ainferior@ judges, such as the judges of the magistrate's courts, which became known as Provincial Courts in the late 1960s and 1970s. (Superior court judges are those who exercise jurisdiction similar to that of the superior court judges in the United Kingdom.) In 2001, there were 2,011 judges in Canada, including 240 supernumerary (partly retired) judges. (Snowball, 2002) Fifty-one per cent of the judges were federal judicial appointments, and the remainder were appointed by the provinces or territories. Outside of Quebec and British Columbia, which do not provide data on gender, 24 per cent of the full-time judges were women, compared with only four per cent of the supernumerary judges. (This is an indication that younger judges are more likely to be representative of both genders than older judges.)

The constitution gave the federal government the responsibility for creating the criminal law, while the provinces retained control over legislating with regard to most private law matters. The federal government gained responsibility for the prosecution of federal offences that are not part of the criminal law (such as the prosecution of drug offences), while the provinces kept their pre-confederation responsibility for prosecuting criminal offences in all courts, and also for providing court facilities and staff for all courts in the unitary system below the level of the Supreme Court. The only courts that are exceptions to the unitary court system are the Federal Court, whose 27 full-time judges and 12 supernumerary judges in the trial and appellate divisions hear cases dealing primarily with federal administrative law issues, and the Tax Court, whose 19 full-time judges and 3 supernumerary judges hear cases arising out of federal taxation laws. This division of powers over the justice system is set out in Sections 96 to 101, 91(27) and 92(13 to 15) of the Constitution Act, 1867.

[Table One about here]

In order for the adjudicative process to be credible and to serve the needs of democracy, several conditions have to be met. Judges must be competent and as impartial as possible, and must also appear to be impartial. Litigants must be treated fairly, meaning that due process is followed so that all sides to a dispute have the opportunity to present their cases fully. Finally, cases must be settled in a timely fashion. In criminal cases, this means that after taking into account the time needed by criminal accused persons and the Crown to prepare their cases, cases ought to be tried with minimal delay so that accused persons do not have to suffer long waits during which their fate is uncertain, and during which time they might be incarcerated. As well, the longer the delay, the less reliable is the memory of witnesses, and the less chance there is that witnesses will still be available to testify. In civil cases, unnecessary delays not only lead to suffering because of unknown outcomes, but where large sums of money are involved, delays in paying settlements can lead to additional injustices. Issues related to the fair treatment of litigants, and to unreasonable delays in processing cases will be addressed in Chapter 4. I will now turn to a consideration of a key indicator of court performance -- judicial impartiality.

<1>Judicial impartiality, judicial discretion and the law-making function of judges

To be perfectly impartial, for judges or for anyone else, is impossible. However, the impossibility of pure impartiality is no reason to become cynical about the quest for justice, just as the fact that no professor is perfectly impartial is not a good enough reason to give up on examinations as a teaching tool. What we expect of judges is for them to educated, selected and situated in such a way so as to be in a position to be as impartial as humanly possible.

Judicial education in Canada consists of completing a law degree, and having at least ten years of experience in legal practice or as a legal academic. Prior to 1970, there were no formal training courses for judges; life experience was considered enough. In 1971, the Canadian Judicial Council was established with both an education and a discipline mandate for federally-appointed judges. It offered several seminars each year, including one in judgment-writing. From 1974, the Canadian Institute for the Administration of Justice has run educational seminars for judges at all levels, including a one-week seminar for new judges. In 1987, the National Judicial Institute was established in Ottawa to develop and deliver educational programs for judges at all levels, and in different locations across Canada. Judicial attendance at these educational seminars is not required, and depends on the interest of individual judges, available resources, and the willingness of chief judges and justices to allow puisne (ordinary) judges to attend.

In a series of interviews with superior court judges conducted by my colleagues and I in the mid-1990s, we found that most judges interviewed thought that they did not have adequate time for judicial education. (Greene et al., 1997) Given that the European civil law tradition has created compulsory academic training programs for judges that are separate from the training programs from lawyers, and given the spate of wrongful convictions brought to light be DNA testing (Manitoba, 2001) it is natural to wonder whether the Canadian judicial system would be better served either if all newly-appointed judges were required to attend a comprehensive judicial training program prior to taking up their positions, or if universities should provide post-graduate programs in adjudication for aspiring judges or tribunal members. Some of the training programs currently offered by the National Judicial Institute deal with strategies for reducing bias related to factors such as gender. In order to promote impartial decision-making, such strategies ought to be considered by all judges, not just those who choose to and are able to take such courses.

There has been a great deal of improvement in procedures for making judicial appointments in Canada during the past three decades. Prior to this time, political patronage was a major factor in judicial appointments at both the federal and provincial levels. The first cracks in the patronage system began to appear in 1967, when Pierre Trudeau was Minister of Justice. He set up a system of consultation in which potential candidates for federal judicial appointments being considered by the office of the Minister of Justice were reviewed by a committee of the Canadian Bar Association, and rated as to whether they were "qualified" for a judicial appointment. The cabinet rarely appointed anyone deemed unqualified. Patronage still played an important role, however, because those who got on the list in the first place were those acceptable to the justice minister and the Prime Minister.

In 1968, Ontario's Royal Commission into Human Rights led by former Chief Justice James McRuer (McRuer, 1968) pointed out the problems of bias and unfairness created by magistrates appointed by the provincial cabinet for their political connections rather than their competence. As a result of McRuer's scathing critique of the provincial justice system, the magistrate's courts were replaced by a Provincial Court with better facilities and higher qualifications for judges, and judicial appointments were screened by a Judicial Council which, like the Trudeau system at the federal level, at least weeded out potentially bad appointments. The other provinces followed suit with revised judicial appointments systems, and they seemed to compete with each other for the development the best system for making quality appointments.

Extensive reforms were made to the Ontario provincial judges appointment system in the late 1980s by Attorney General Ian Scott. The fifteen-member committee that eventually resulted from Scott=s reforms was initially chaired by one of Canada=s leading authorities on the judiciary, Professor Peter Russell. The appointments committee is composed of a nearly equal number of lawyers and non-lawyers, and of men and women. The key feature of this committee is that it proactively recruits potential candidates, and does not simply react to names given to it by the government. It advertises extensively for qualified persons to apply for judicial positions and has been particularly proactive in encouraging women and members of minority groups to apply. Applicants must complete a comprehensive application form, and references are checked. Those who appear to be best qualified are interviewed and ranked. The committee forwards its ranked recommendations to the Ontario Judicial Council, which forwards them to the Attorney General. Until the Conservative government under Mike Harris took office in 1996, and those appointed by cabinet were nearly always those recommended by the committee. For a time, the Conservative Attorney General was of the opinion that the appointments committee tended to recommend candidates who were not tough enough on crime, and asked the committee for a longer list of potential appointees. Before long, however, the Harris cabinet came to the conclusion that the judicial appointments committee system was fair and promoted higher-quality appointments.

The improvements at the provincial level encouraged the federal government to improve the system for federal judicial appointments, and the Ontario model was generally considered to be a model worthy of emulation. The Mulroney government replaced the system of consultation with the Canadian Bar Association with provincially-based screening committees, but this represented only a small improvement. The committees were not given responsibility for recruiting candidates; all they could do was to react to names presented by the Minister of Justice. The Liberal election platform of 1993 included a promise to improve this system, and there have in fact been a number of enhancements since then. The committees advertise to encourage a broader range of applicants, applicants must fill out application forms similar to those used in Ontario, and the committees may interview applicants. As well, the federal government has promised to make public the names of committee members.

Some believe that a democracy requires elected judges, a topic to be taken up in Chapter 3. However, even if the judicial selection and education processes are optimal for promoting judicial impartiality in a democracy such as Canada, there remains the question of how judges ought to use judicial discretion. Judicial discretion is perhaps most obvious in cases involving judicial review. Judicial review is simply the process by which judges determine the impact of superior laws over inferior ones. Prior to Canada's creation, judges in the United Kingdom were used to undertaking judicial review of secondary legislation. Cabinet orders, city by-laws, or regulations made by administrative tribunals all had to be in accord with primary legislation, or the courts would declare them ultra vires,or outside of the law and therefore void. (As well, any actions of public servants that proceed without valid legislated authority are illegal, and can be declared so through judicial review.) Judicial review on constitutional grounds in Canada was originally based on the fact that British North America Act of 1867 (now the Constitution Act, 1867), being an Imperial statute, took precedence over all federal and provincial laws. If in a dispute before the courts, a litigant claimed that a particular federal or provincial law was not clearly within the jurisdiction of the government that had enacted it, a judge would have to decide whether that argument had merit. Judicial review on constitutional grounds is now based on S. 52 of the Constitution Act, 1982, which declares that the "Constitution of Canada is the Supreme law....," and defines the constitution to include the Constitution Act, 1867, the Charter of Rights and Freedoms, and a number of other acts and orders.

Judicial review is essential in a federal system of government in order to settle disputes about the meaning of the division of powers between central and regional governments, or disputes about other parts of the written constitution. Judicial decisions that uphold the status quo are often referred to as "restrained," while judicial decisions that strike down laws when there are strong arguments that could be invoked to uphold the laws are often referred to as "activist."

The Charter of Rights is an important addition to the Canadian constitution, and it extended the opportunities for judicial review. There has been much debate among political scientists and academic lawyers since the advent of the Charter of Rights in 1982 about the appropriate use of judicial discretion. Prior to this time in Canada, the role of judges in law-making was not a major issue, for two reasons. First, the school of legal thought called positivism held sway from the mid-1800s until the 1970s. The positivists argued that good judges merely apply the law, and there is no room for judicial discretion. In cases where the meaning of the law is unclear, then there are canons or rules of interpretation that will direct the astute judge to the correct conclusion. For example, if there are conflicting precedents, the rules say to give priority to the more recent precedents, and to judges of the highest-ranking courts in the jurisdictions most closely related to the jurisdiction in question. If these rules are applied correctly, then there is one right answer to every legal problem, and good jurists would always agree as to the what the correct answer is. (Austin, 1998 and Dicey, 1902) Second, the major arena for judicial discretion that might impact public policy was with regard to the division of powers. Although academics were aware of the impact of the decisions of the Judicial Committee of the Privy Council (JCPC) in changing the balance of power between the provinces and the federal government, the interpretation of the division of powers was not a subject that created heated public debate. Most scholars agree, however, that from the 1890s until the 1930s, the JCPC had been sympathetic to provincial rights arguments and tended to rule in their favour. (Russell, Knopff and Morton, 1989) The result was a gradual transfer of power from the central government to the provinces, so that present-day Canada is arguably the most decentralized federation in the world. Peter Hogg States that A...the Canadian provinces are already more powerful, in both legislative and fiscal terms, than are the American or Australian States in relation to their central governments.@ (Hogg, 2000, Ch. 4.8(b)) JCPC decisions resulted in an erosion of the federal residual power, the federal Trade and Commerce power, and the federal criminal power.

In the 1960s and 1970s, the Canadian legal community caught up with its American counterpart and became open to the arguments of thinkers called "judicial realists," who contended that legal rules can never be as clear as the positivists believed they were. For one thing, the positivists themselves often disagreed about the correct application of the canons of interpretation. For another, some laws are so vague that there are no legal rules that can identify a precise meaning. For example, Sections 91 and 92 of the Constitution Act, 1867 list the constitutional jurisdiction of the federal parliament and the provincial legislatures, respectively. There are many ambiguities in these lists. For example, in 1867 the telephone had not been invented. Is telephone a matter for federal regulation under the federal government's power to regulate "Telegraphs, and other Works and Undertakings connecting the Province with any other," or is it a matter for provincial regulation as an example of "Local Works and Undertakings"? In 1905, the JCPC decided that the Bell Telephone Company was under federal jurisdiction because it planned to operate in two provinces. However, it was assumed by most lawyers that the prairie and Atlantic provinces had the right to regulate the telephone companies that sold services purely within provincial boundaries, and they did so until 1989. In that year, the Supreme Court surprised most observers by declaring that the provincial telephone companies were really under federal jurisdiction because they sold long-distance services outside of provincial boundaries. And in 1994, the Supreme Court ruled that even local and municipally-owned telephone companies that relied on the provincial telephone companies for long-distances services were under federal jurisdiction.

That many lawyers were surprised by these Supreme Court decisions in 1989 and 1994 shows that the conclusions about jurisdiction to regulate telephones were not mechanical and clear-cut. The judges exercised discretion. Judicial realists argue that the individual predisposition of judges must necessarily affect their decisions whenever the law can be legitimately interpreted in different ways. (Llewellyn, 1996 and Pound, 1981) The realists were originally concerned with judicial discretion in a small number of cases in which the law was worded in very general terms (such as some parts of the constitution), or where there were conflicting precedents or other ambiguities -- cases referred to as Ahard@ cases in the literature. However, even in Aeasy@ cases, there can be a fair scope for the legitimate exercise of judicial discretion. For example, John Hogarth (1971) shows that the range of sentences handed out by judges at the Provincial Court level tends to be quite wide in criminal cases with very similar fact situations.

The arrival of the Charter of Rights and Freedoms in 1982 made the public more generally aware of the potential for judicial discretion for the first time. Some of the well-publicized Supreme Court decisions in the late 1980s, such as the Big M decision that struck down the federal Lord=s Day Act (1985), the Morgentaler decision that struck down Canada=s abortion law (1988), and the Quebec signs decision (Ford, 1988) made Canadians aware that judges do have broad interpretive powers, and that how these powers are used may depend on the broader philosophical perspectives of the judges themselves. In spite of the controversies over these decisions, polls over the years have shown consistent and strong support for the Charter. (Fletcher and Howe, 2000) For example, in April of 2002, an Ipsos-Reid poll indicated that 74% of Canadians, including 75% of Quebeckers, think that their rights are better-protected now thanks to the Charter. (2002) When asked whether they felt more comfortable with judges protecting their rights through interpreting the Charter, or politicians in Parliament and provincial legislatures protecting their rights, 70% felt more comfortable with judges and the Charter (as opposed to 21% preferring the political route). In Quebec, 73% felt more comfortable with judges and the Charter, and only 19% preferred the political protections. In contrast, a poll released in April, 2002 by the National Post indicates that seven out of ten Canadians think that federal and provincial politicians are either highly corrupt or somewhat corrupt. (McKenzie, 2002) It=s no wonder that most Canadians have more faith in judges than in politicians. The public preference for the courts should be interpreted with caution, however. Although three-quarters of Canadians think that the average Canadian is treated fairly in court, more than 8 out of 10 Canadians think that the justice system needs to be "more sensitive and compassionate." (Canada, Dept. of Justice, 1987).

In spite of the strong public support for the Charter, some prominent academics and politicians claim that the Charter, and the additional opportunities for judicial discretion that it offers, undermines Canadian democracy. Both right-wing Charter critics, such as Ted Morton and Rainer Knopff, (1992 and 1999) and left-wing critics, such as Michael Mandel (1994) have lamented the increased involvement of unelected judges in the democratic policy-making process thanks to the Charter. From Mandel=s perspective, judges have interpreted the Charter so as to favour business and monied interests, but from the Knopff-Morton viewpoint, the judges have succumbed to the arguments of Acourt parties@ that have been pushing the interests of mostly left-wing special interest groups. Some Canadian Alliance MPs have similar views. Article 75 of the January 2000 policy statement of the Canadian Alliance States: AWe believe that an independent judiciary is a vital bulwark of the freedom of Canadians against the exercise of arbitrary power by the state. However, we also believe it is the role of Parliament, not the courts, to debate and balance the conflicting rights inherent in developing public policy. Final responsibility for public policy must rest with Parliament instead of with unaccountable judges and human rights officials.@

Christopher Manfredi, another prominent critic of judicial policy-making under the Charter, has pointed out how inappropriate the judicial process is for assessing some complex social policy issues, and is disappointed that the political branches of government have not been more active in using S.33 to suspend what he considers to be bad judicial decisions. (Manfredi, 2001) But Peter Russell, a court-watcher who takes a more neutral stance about whether the Charter enhances Canadian democracy, has advocated more appropriate recruitment and appointment procedures for judges so that the judges will be more likely to be up to the challenges posed by the Charter and other justice system issues. (Russell, 1992) And Michael Ignatieff sees the Charter as an important manifestation of the global Arights revolution,@ marking a shift in emphasis from viewing the individual as a cog in the wheels of state, to the state as a vehicle for protecting and promoting individual self-worth and dignity. (Ignatieff, 2000).

If it is accepted that judicial discretion is unavoidable, and if this discretion is judged from the perspective of the broad definition of democracy -- government based on the principle of mutual respect -- then the critical issue is whether judges tend to use discretion in accord with the basic notion of mutual respect. If judges consistently tend to favour big business, as Mandel argues, or left-wing special interest groups, as Morton and Knopff argue, then it may be that other agendas preoccupy the collective judicial unconscious. However, as Richard Sigurdson has demonstrated, the ACharterphobes@ have greatly exaggerated the problems associated with judicial interpretation of the Charter. (Sigurdson, 1993) The Charter was never intended to be a vehicle for radical social transformation, a fact lamented by the left-wing critics, but it has nevertheless resulted in the advancement of the causes of social justice in a number of decisions, as shown in the pages that follow. And as far as the right-wing critics go, their claim that the Charter has been monopolized by special interest groups is also an exaggeration. Certainly, some interest groups are litigating now that did not before the Charter. But very often, these groups are what Alan Cairns refers to as ACharter Canadians@ -- people who felt left out of the political system prior to 1982. (Cairns, 1995) There have always been special interest groups that have tried to use the courts for their own purposes, but prior to 1982 they were the more traditional special interests, such as the forces of regionalism, and certain business and professional interests.

<1>Conclusion

This chapter has described the Canadian court system, and has outlined some of the challenges that it faces from the perspective of democratic values. Courts are organizations steeped in history and tradition, many of them dating from pre-democratic times. When Canada was established in 1867, this country was on the road to democracy because of the constitution's provision for a representative Parliament and provincial legislatures, and the tradition of cabinet accountability to the legislative branch of government. After the franchise was extended to become universal in the first half of the twentieth century, some of the vestiges of the pre-democratic era of courts -- patronage appointments, and a system built more to allow lawyers and judges to practice their craft as to serve the public -- began to give way to merit-based systems of appointment, and re-organized court services whose primary goal was public service.

After the Charter of Rights came into being in 1982, many Canadians began to realize what has always been the case -- that courts have an unavoidable policy-making role whenever the law is unclear. Some laws, such as constitutions, are at high levels of abstraction, and therefore are unavoidably vague. Although some academics and politicians have been loudly critical of the activism of Canadian courts since 1982, and although most Canadians think that their courts need to be more sensitive and compassionate, most of us are more trusting of the courts than of elected legislatures. It may be that the controversy about judges as law-makers is based more on a narrow definition of democracy as government by the majority that leaves little room for a consideration of other aspects of democracy to which the courts legitimately contribute. Because this volume treats democracy as government based on the principle of mutual respect, there is less concern in the pages that follow about judicial activism than "Charterphobes" would prefer, and there is more attention paid to whether judicial decisions are likely to promote greater mutual respect. As well, this book is concerned with other expectations of courts as institutions in a democracy -- responsiveness, including providing expeditious justice, inclusiveness, and appropriate public participation. It is the issue of public participation in the court system that we turn to in Chapter 2.