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POLS 3130 (87)
Chapter 3

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Political Science
POLS 3130
Troy Riddell

Judicial Process  There are 3 models of the court: adjudicative, policy-making, problem solving  These models of court will be compared using 4 key components of the judicial process: (1) access to court, (2) the role of the judge and number of parties (in the dispute), (3) fact-finding, (4) mode of reasoning Adjudicative model  Based on assumption that the proper role of the courts is to resolve disputes, not underlying problems and to refrain from making policy 1. Judges adjudicate concrete legal disputes  They do not adjudicate disputes that are no longer in existence, hypothetical or involve a disagreement that is not legal in nature  Access to courts, especially to challenge government policy is difficult 2. The legal dispute involves 2 parties  In common law system, judge acts as passive referee who makes decisions based on submissions from the parties in an adversarial process 3. Judge arrives at a conclusion by applying established legal principles to the facts of the case  Does not mean that judges never play a role in defining the legal principles but they are limited to the degree to which they create rules Policy-Making Model  Assumes it is proper for courts to be involved in articulating public values through policy development; courts operate more like legislatures or executive bodies  Relatively easy to obtain access to the court to challenge government policy  3 party interest groups can make presentations to court, social science data is used in decision making and judges try to balance social interests in their decisions Problem-Solving Model  The more recent model of courts; sees value in the courts‟ addressing the underlying problems or issues that give rise in legal disputes  Makes use of ADR techniques before the trial and trials themselves are presided over by judges who are actively involved in collecting evidence  E.g. treatment courts; specialized courts Access to Court: Standing, Mootness, Ripeness and Political Question  Standing refers to the requirement that one must be party to a legal dispute in order to have a case heard in court  initially, the test for standing was quite restrictive in the context of public law and the ability to challenge the constitutional validity of a law  Borowski decision, SCC said standing should be granted if a person is directly affected by a law or has a genuine interest as a citizen in the validity of the legislation (no other way issue could be brought before the court) – allowed Borowski to challenge the law  Later SCC determined that allowing public interest standing by individuals and interest groups was even more important after CCRF  However, the decision to grant standing should not be a blanket approval – it should be be guided by the role of the courts in the system of government (civil vs. private); the desirability of having both sides of the issue presented by those most directly affected by the law and the resources needed to hear and decide cases  Mootness is concerned with whether a live legal dispute still exists despite the dispute being no longer “live” and the SCC created a 3 part test to determine whether moot cases should be heard and decided  First – does an adversarial situation exist? – would both sides be effectively represented  Second – are the issues important enough to warrant the use of resources? – if the underlying issue is likely to come up again then yes, this can save the courts time (reduces chances it will be continue to be litigated) and clarifies disagreements about the law  Third – judges must think about the court‟s proper “law-making function” and be sensitive to the judiciary‟s role as the adjudicative branch  E.g. M v. H – lesbian challenged Ontario law because she was not entitled to her partners things but before it went to court, the legal dispute no longer existed because it was settled out of court however, SCC heard it anyways and ruled that it did violate the CCRF – caused governments all over CAN to change their policy  Courts in Canada are inconsistent in applying these guidelines but decide to hear moot cases frequently which suggests a move towards a policy- making model  Doctrine of ripeness is concerned with whether a dispute has had enough time to develop a sufficient legal and factual foundation – is it too hypothetical or speculative?  E.g. Saumur case – Quebec man tried to challenge a law that threatened religious freedoms but was not allowed because he hadn‟t been charged under it  SCC has taken cases that are somewhat speculative however, and tend to be more lenient with reference cases where the government asks for an advisory opinion  Political questions doctrine was developed by the US Supreme Court and stipulates that if an issue is the clear responsibility of another branch of government or lacked judicially discoverable and manageable standards for resolving it, then it is a justiciable political issue  This has been diluted over time in the US and the SCC has rejected the applicability of this doctrine on various occasions  This is consistent with lower barriers to standing, readiness to hear moot cases and flexibility with hearing premature or speculative cases – it is easier for individuals and organizations to challenge laws and policy Role of the Judge and Number of Parties  Chaoulli case – prominent victory in a rights-based case where the SCC struck down Quebec‟s limits on access to private health care  This illustrated increased willingness of Canadian courts to allow multiple parties to be heard in a dispute and signaled a shift towards the policy making model  Role of judge in Canadian judiciary is moving towards a problem solving model of courts  Judges described in this model actively participate in the process as managers; resolve disputes using ADR before trial and are more actively involved in the trial (especially in specialized courts)  E.g. family law cases in s.96 trial courts in Alberta require mandatory pre- trial conferences consisting of case management and settlement – not a typical function of the judge in the adjudicative model  Written pre-conference rules, style and philosophy of individual judges and local legal culture are important determinants of whether pre-trial conferences are procedural, directed more at evaluating the legal claims or used to encourage a settlement  In contrast to civil litigation, judges in criminal law cases have generally been discouraged from actively resolving disputes before trial; however, both civil and criminal processes are making increased use of ADR or therapeutic processes associated with the courts but not conducted by judges  In civil litigation, many jurisdictions encourage or require mediation before trial – these are called court-annexed or court affiliated programs  This is because the people who participate in them have already begun the process of resolving their disputes through the courts  Non judges conduct the mediation while the legal case is on hold within the judicial process  E.g. ON and SASK both have mandatory mediation for non-family civil cases initiated in s.96 courts – evaluations of this mandatory mediation have been positive resulting in reduced times for cases and reduced costs to litigants  The trend towards greater use of case management/settlement conferences and court-affiliated ADR techniques before trial can partly be explained by concerns over delays in the court system  ADR techniques help eliminate the harmful effects such as increased cost and stress  Critics of ADR argue such processes could lead to the privatization of justice and may disallow disadvantaged groups and individuals from fully pressing their legal rights resulting in second class justice  Also argue that it may undermine the rule of law and accountability (judges passing off disputes to people who are not trained)  The response to criticism: trials do not guarantee justice and is still an option after ADR; ADR helps disadvantaged by offering cost effective alternative Specialized Courts  The increased emphasis on trying to settle disputes by addressing underlying issues or problems is not confined to pre-trial processes and is showing up during the trial stage in the form of specialized courts  Function of these specialized courts vary considerably but are characterized by:  (1) Attention to seeking tangible outcomes for victims, offenders and society as well as active judicial monitoring to make sure the goals are achieved  (2) Collaboration of the courts with criminal justice agencies, service providers and community organizations to help achieve goals set for individuals and the community by providing integrated planning and implementation of programs  (3) non-traditional roles being played in the courtroom by lawyers and judges (some receive special training to promote continuity)  E.g. NB Mental Health Court – has a specialized team; those eligible are criminally responsible and fit to stand trial but have committed an offence linked to mental illness; upon successful completion of the program the charges are dismissed or a non- custodial sentence is given  Hard to assess the courts however studies have been positive in keeping people in treatment, reducing recidivism and assisting victims and communities  Criticisms stem from claims that these courts are too lenient on defendants whereas others claim they deprive defendants of due process protections  Lawyers are forced into roles that may conflict with their professional duties; they may also lack the proper training  Concerns about the erosion of judicial independence or the usurpation of policy-making power by judges  Trend towards problem solving courts is increasing – expansion of drug courts beyond TO and Vancouver; family courts increasingly following this model as well; pre-trial mediation is more common and the trial process itself more informal  Judges and commentators are arguing that this approach should be used in regular courtrooms through the use of clear and plain language and active listening by judges who show empathy and treat people with respect and dignity, set goals, monitor progress, co-ordinate with service organizations etc.  Appellate courts can engage in therapeutic jurisprudence by writing opinions that treat each party‟s viewpoint with respect  This spread of problem solving principles may be inhibited by institutional and resource constraints, unwillingness of some judges to adopt therapeutic values (in regards to punishment) as it may undermine their role as impartial adjudicators of disputes Fact-Finding  Though it is odd to suggest judges become more involved in collecting and examining evidence however, historical and comparative perspectives suggest it may be reasonable and desirable for judges to play a more active role in trial or pre-trial processes  Judges have always had an integral role in gathering and testing evidence in the civil law system  At the appellate level in civil law systems, intermediate appeal courts will undertake a de novo review of the case – these courts will re-e
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