October 2, 2012 (Lecture5: Courts, Judging, etc.)
Courts and the Judicial Process
- If you have a dispute, you generally go to court.
- There are several difficulties in attempting to understand what courts and how they do it.
- First, not all judges view their roles in the same way.
- Some judges see their role it as defending the status quo.
- Some judges believe that their role is to create or advance the law (activism) while others see it
as merely interpreting existing (restraint) law.
- Objectives and Procedures of Judging:
- Adjudicative model:
o Four components of the judicial process are predicated on the idea that simply resolve
Judges do not solve larger societal problems, underlying problems or make new
o Judges should not adjudicate disputes that are hypothetical no longer exist, involves non-
o Access to courts should be limited because disputes should only be limited to two people.
o Judges should act as “passive referees” who make decisions based on submissions of the
o Court is an adversarial process.
o Facts (as presented) must follow “who did what to whom” (adjudicative facts).
o Judges should only arrive at a decision by applying established legal principles to the facts
of the case.
- Policy-making model:
o Assumes that courts and judges should be involved in the grand dialogue of public vales,
morals and justice.
o There is a legitimate role for courts and judges in the public policy process.
o Courts and judges should therefore not just be adjudicators, but act like policy actors
(legislatures and executive).
o Judges should take societal interests, morals and values into consideration when making
o Courts should make an attempt to understand underlying problems that give rise to the
o This type of judging uses alternative dispute resolution processes.
o Problems may be pushed out of courts before trial (special tribunals, mediation).
o If the dispute goes to trial, judges take an active interest in the collection and presentation
o Decisions will reflect a desire to solve the underlying issues behind any dispute. (i.e.
restorative justice, mediation).
- Access to court(s):
o Who should get to participate, intervene and influence judicial hearings?
o Different models have discussed above would have different opinions.
o Canadian courts have grappled with this question, and it is not surprising that the answers
often depend on the dispute itself.
- Access to Court: Standing
o Standing refers to the requirement ha one must be a party to a legal dispute in order to have
a case heard in court.
o Prior to the early 1980s, Canadian courts had fairly restrictive rules around standing.
This early test (Smith, 1924) stated that a person could only ask a court to declare a law o This early test (Smith, 1924) stated that a person could only ask a court to declare a law
unconstitutional if the law “exceptionally prejudiced” the plaintiff.
o By 1981, the rules surrounding standing were relaxed (Borowski, 1981).
o In Borowski, the Supreme Court of Canada ruled that a person could be granted standing if
she/he ‘is affected directly by a law’ or has ‘a genuine interest as a citizen in the validity of
o “Genuine interest” was granted if the person could declare that there was no other way for
the individual to bring the issue to court.
o After the introduction of the Charter, the Supreme Court of Canada created “public-interest
standing” for people to challenge laws (Canadian Council of Churches 1992).
To not do so, the Supreme Co