Searching for the Constitutional Core of Access to Justice

This paper posits that access to justice is both a large multifaceted concept with broad policy implications and also a constitutional commitment central to our legal system. It contends that the process of refining and giving contemporary meaning to the legal principle of access to justice is obfuscated by debate surrounding the broader policy concept because the duality plays into concerns over the respective roles of governments and the courts to ensure access to justice, which brings the justiciability of access to justice claims into question. The woeful state of civil legal aid programs across Canada is attributable in part to the confusion arising from this debate. The author proposes that a way forward can be found by disassociating the broad policy concept of access to justice from the narrower legal and constitutional principle. It is only this narrower meaning that gives rise to legal obligations and hence is within the purview of the courts. Three approaches to defining the constitutional core of access to justice are briefly explored: (1) access to the courts and the rule of law; (2) access to counsel and the right to a fair trial; and (3) access to justice and the equality benefit and protection of the law. Finally, the paper discusses Canadian Bar Assn. v. British Columbia as an example of a case that offers the opportunity to search for and further refine the constitutional core of access to justice if it can be untangled from the web of justiciability concerns

Women’s Court of Canada Act and Rules

This paper explores the issue of how a feminist court could operate through the device of a model statute and rules for the Women&rsquo;s Court of Canada. The Women&rsquo;s Court of Canada is a feminist legal project bringing together academics, activists, and litigators to "rewrite" Canadian Charter of Rights and Freedoms equality jurisprudence. Over the course of more than a decade, the members of this virtual 'court' have reconsidered leading equality rights decisions, rendering alternative judgments with the aim of articulating fresh conceptions of substantive equality in judgment form. Here, the author takes a step away from the substance of equality rights law to focus on legal institutions and procedure. El presente art&iacute;culo profundiza en la cuesti&oacute;n de c&oacute;mo podr&iacute;a funcionar un tribunal feminista mediante unos estatutos tipo y unas normas para el Tribunal de Mujeres de Canad&aacute;. El Tribunal de Mujeres de Canad&aacute; es un proyecto jur&iacute;dico feminista que re&uacute;ne a acad&eacute;micas, activistas y abogadas, quienes "reescriben" la jurisprudencia sobre igualdad de la Carta Canadiense de los Derechos y las Libertades. Durante m&aacute;s de una d&eacute;cada, los miembros de este "tribunal" virtual han cuestionado sentencias con el objetivo de articular concepciones nuevas de igualdad sustantiva en forma de sentencia. La autora de este art&iacute;culo se distancia de lo sustantivo de las leyes sobre derecho a la igualdad y se centra en las instituciones jur&iacute;dicas y el procedimiento. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=3244347</a

Towards transformative human rights practices : a reconsideration of the role of Canadian legal institutions in achieving social justice

This thesis examines the tension between the evolving demand for the protection and promotion of human rights and the dissatisfaction with the legal institutions charged with these responsibilities. This problematique is examined and reconstructed with the objective of determining how Canadian legal institutions could be structured so as to more effectively contribute to the achievement of social justice. A critical theory approach is undertaken in this thesis. This method involves the development of a transformative ideal against which current practices are examined. This juxtaposition illuminates both the problems with, and the possibilities of, the courts and human rights commissions in interpreting and applying human rights norms. The transformative ideal comprises two elements. The first element postulates that the legal institutional role should be conceived as contributing to a broad and evolving discourse on human rights and responsibilities within the public sphere. The second element holds that this role should be enhanced through the development of transformative human rights practices and their integration into legal processes. The transformative ideal is constructed through a series of six discussions comprising: (1) the development of an analytical framework based on the concepts of social transformation, social justice, human rights and the right to equality; (2) an examination of the critique of the role and functions of courts and human rights commissions; (3) an elaboration of a normative account of the public sphere and discourse together with a discussion of the role of human rights norms therein; (4) a discussion of current mediation practices in the human rights context leading to the development of a normative model of transformative mediation; (5) an examination of the transformative ideal in human rights commission practices; and (6) an exploration of the transformative ideal in court practices. The thesis concludes that the transformative ideal and particularly the concept of transformative human rights practices, will assist in reform of Canadian legal institutions so as to enhance social justice

Searching for the Constitutional Core of Access to Justice

This paper posits that access to justice is both a large multifaceted concept with broad policy implications and also a constitutional commitment central to our legal system. It contends that the process of refining and giving contemporary meaning to the legal principle of access to justice is obfuscated by debate surrounding the broader policy concept because the duality plays into concerns over the respective roles of governments and the courts to ensure access to justice, which brings the justiciability of access to justice claims into question. The woeful state of civil legal aid programs across Canada is attributable in part to the confusion arising from this debate. The author proposes that a way forward can be found by disassociating the broad policy concept of access to justice from the narrower legal and constitutional principle. It is only this narrower meaning that gives rise to legal obligations and hence is within the purview of the courts. Three approaches to defining the constitutional core of access to justice are briefly explored: (1) access to the courts and the rule of law; (2) access to counsel and the right to a fair trial; and (3) access to justice and the equality benefit and protection of the law. Finally, the paper discusses Canadian Bar Assn. v. British Columbia as an example of a case that offers the opportunity to search for and further refine the constitutional core of access to justice if it can be untangled from the web of justiciability concerns

Towards transformative human rights practices : a reconsideration of the role of Canadian legal institutions in achieving social justice

This thesis examines the tension between the evolving demand for the protection and promotion of human rights and the dissatisfaction with the legal institutions charged with these responsibilities. This problematique is examined and reconstructed with the objective of determining how Canadian legal institutions could be structured so as to more effectively contribute to the achievement of social justice. A critical theory approach is undertaken in this thesis. This method involves the development of a transformative ideal against which current practices are examined. This juxtaposition illuminates both the problems with, and the possibilities of, the courts and human rights commissions in interpreting and applying human rights norms. The transformative ideal comprises two elements. The first element postulates that the legal institutional role should be conceived as contributing to a broad and evolving discourse on human rights and responsibilities within the public sphere. The second element holds that this role should be enhanced through the development of transformative human rights practices and their integration into legal processes. The transformative ideal is constructed through a series of six discussions comprising: (1) the development of an analytical framework based on the concepts of social transformation, social justice, human rights and the right to equality; (2) an examination of the critique of the role and functions of courts and human rights commissions; (3) an elaboration of a normative account of the public sphere and discourse together with a discussion of the role of human rights norms therein; (4) a discussion of current mediation practices in the human rights context leading to the development of a normative model of transformative mediation; (5) an examination of the transformative ideal in human rights commission practices; and (6) an exploration of the transformative ideal in court practices. The thesis concludes that the transformative ideal and particularly the concept of transformative human rights practices, will assist in reform of Canadian legal institutions so as to enhance social justice.Law, Peter A. Allard School ofGraduat

Towards transformative human rights practices : a reconsideration of the role of Canadian legal institutions in achieving social justice

This thesis examines the tension between the evolving demand for the protection and promotion of human rights and the dissatisfaction with the legal institutions charged with these responsibilities. This problematique is examined and reconstructed with the objective of determining how Canadian legal institutions could be structured so as to more effectively contribute to the achievement of social justice. A critical theory approach is undertaken in this thesis. This method involves the development of a transformative ideal against which current practices are examined. This juxtaposition illuminates both the problems with, and the possibilities of, the courts and human rights commissions in interpreting and applying human rights norms. The transformative ideal comprises two elements. The first element postulates that the legal institutional role should be conceived as contributing to a broad and evolving discourse on human rights and responsibilities within the public sphere. The second element holds that this role should be enhanced through the development of transformative human rights practices and their integration into legal processes. The transformative ideal is constructed through a series of six discussions comprising: (1) the development of an analytical framework based on the concepts of social transformation, social justice, human rights and the right to equality; (2) an examination of the critique of the role and functions of courts and human rights commissions; (3) an elaboration of a normative account of the public sphere and discourse together with a discussion of the role of human rights norms therein; (4) a discussion of current mediation practices in the human rights context leading to the development of a normative model of transformative mediation; (5) an examination of the transformative ideal in human rights commission practices; and (6) an exploration of the transformative ideal in court practices. The thesis concludes that the transformative ideal and particularly the concept of transformative human rights practices, will assist in reform of Canadian legal institutions so as to enhance social justice