GS/Law 6761Fall 2007

Instructor: Ian Greene

Saturday, October 20, 2007Research 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

Topics for October 20Organizational theoryjudicial discretionjudicial activismAdministrative 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?

Adie & ThomasDouglas Worndl: “The social meaning of

organizational life”

Paul Thomas, University of Manitoba

David DyzenhausDiane Therrien

David Dyzenhaus, University of Toronto

Martin FriedlandNora Ferrell

Martin Friedland, University of Toronto

Janice Gross SteinKatherine Weaver

Janice Gross Stein, University of Toronto

Margaret AllarsPam Hillen

Margaret Allars, University of Sydney

McCormick & GreeneLiz 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.

Peter McCormick, Canada’s CourtsPatricia Pledge: “Winning and Losing in

Canada’s Courts”This chapter first appeared as a journal articleFeatured on page 1 of Globe and Mail: “judges

biased”G&M editorial: shoddy researchMy interviews at SCC: research service had

read original article and advised judges that G&M summary was very inaccurate

Greene, Baar, McCormick, Szablowski & ThomasDonna Miller: Final Appeal: “The Human

Elements of Judicial Decision-making”

Knopff & MortonRyan Bell: Charter Politics

Ted Morton, MLA, Alberta (formerly University of Calgary)

Michael MandelNadya Tymochenko: The Charter of rights

and the Legalization of Politics in Canada

Michael Mandel, York University

CJ Beverley McLachlinLydia Stewart: “Academe and the Courts:

Prof. Mullan’s Contribution”

Greene: The CourtsIan 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?

Montesquieu’s description of separation of powers too simplistic. Judges need appropriate control over court administration

or executive could interfere with judicial impartialityCourts 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.

ParticipationThe 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)

InclusivenessLaw 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 problemShould 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)?

Institutional ResponsivenessMost Canadians satisfied with quality of

judicial decisionsSystem of justices of the peace is problematicSome administrative tribunals problematic

(lack of independence and expertise)Too much room for patronage in federal

superior court appointments, & fed ct & SCCComplaint avenues re judges not widely knownLawyers should be prohibited from using delay

as a tactical weapon in codes of ethics

Judicial decision-making responsivenessCourts 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.”

Overall evaluation of courtsCourts doing well in some areas of advanced

reasoningContribution to understanding of independence &

impartiality, interpretation of CharterAreas for improvement

Public participation in court admin & jud selectionTackling unnecessary delaySupport for unrepresented litigantsRespectful treatment of juries, witnesses &

litigants. Disrectful treatment is really abuse of power.