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Gerard J. Kennedy
Canada’s judicial system is a source of significant national pride. The Supreme Court of Canada in particular and the judicial system in general are ranked at the top of institutions trusted by the Canadian public. 1 Paradoxically, access to civil justice has been considered one of the least admirable aspects of the Canadian civil justice system. While this is arguably partially the consequence of the Canadian civil justice system holding itself to a high standard, this can nonetheless pose problems for the rule of law in particular cases. 2
In this Report, I explore this apparent dichotomy. In Part I, I praise (despite reservations) the Canadian justice system on many dimensions of accountability and transparency. In Part II, I note that despite these institutional successes, the system has nonetheless fallen short in many ways. I primarily explore this through the lens of access to justice. Specifically, after introducing the access to justice crisis in Canada, I discuss the intersection of this crisis with two places where Canada’s civil justice system has fallen short in terms of transparency. First, I investigate the lack of knowledge of the fate of cases that do not go to trial. Though many of these cases settle, which is often though not necessarily positive, figures surrounding settlement can be misleading, as discussed below. Second, I consider the secrecy with which procedural regulations are made.
The judges of Canada’s “superior courts” (trial courts analogous to the High Court of England & Wales) are guaranteed their independence pursuant to the Constitution Act, 1867. 3 In the 1997 case Provincial Judges Reference, 4 the Supreme Court of Canada held that the guarantee of judicial independence applies to judges of all courts in Canada, regardless of whether the courts on which they sit are explicitly mentioned in the constitution. The Court discussed three dimensions of judicial independence: a) security of tenure; b) financial security; and c) administrative independence.
Financial security has three components. First, the government must set up...