John T. Pepall is a writer and retired Ontario lawyer.
In Against Reform, John Pepall offers a stringent critique of proposed reforms to Canada's political institutions. Examining electoral reform, an elected or provincially appointed Senate and reduced terms for Senators, fixed election dates, recall, initiative, and parliamentary reform, including 'free votes' and parliamentary confirmation of appointments, Pepall contends that these reforms are ill-conceived and would be harmful.
COURTS SHOULD APPLY LAW, NOT MAKE IT- Frustration with the expense and delay involved in going to court seems to be leading people to lose sight of the purpose of courts. Across the political spectrum, mediation and alternative dispute resolution are promoted as the ways around problems in the courts. Mediation and alternative dispute resolution have become growth industries for lawyers and lay counsellors and a times, the prospect of the privatization of civil justice looms. Governments balk at the cost of the administration of justice and judges grown tetchy with the tedium of hearing peoples’ private disputes.
The courts, however are not just there to provide government subsidized dispute-resolution services, to parties who could and should resolve their disputes themselves. There has never been anything stopping people from resolving their differences privately. The courts have no monopoly on dispute resolution. The expense and delay in going to court should provide plenty of opportunity for private competition. There has always been some private resolution of business disputes. But it has never developed far, because the courts offer something private dispute resolution cannot. What is new is government encouragement and, in prospect, requirement of alternative dispute resolution.
The element that distinguishes courts - what defines them - is their monopoly on the power to invoke the authority of the state. When a court issues a judgment, property may be seized or people sent to jail for not obeying an injunction. Alternative dispute resolution, if it cannot invoke the authority of the state, is simply another layer of preliminaries before the parties can finally put their case to the courts who can. If it can invoke the authority of the state, alternative dispute resolution is simply a new form of court proceeding, which there is no reason to suppose will be any cheaper or faster than the traditional courts can be.
The purpose of having courts adjudicate private disputes is the same as the purpose of the courts in their criminal jurisdiction: It is to keep the peace. If people could not turn to the courts for a final determination of their differences backed up by the authority of the state, they would end up fighting in the streets. People who can settle their differences amicably do not end up battling them out in court. If parties to a lawsuit do manage to maintain civil, and even business relations, it is because they know that the state, through the courts, will dispose of their dispute and that there is no point in being nasty about it.
The rapidly growing political role of the courts has complicated and obscured their basic and essential role. It has complicated it in two ways: by adding to the courts’ work and increasing the delays, particularly as political cases are usually given priority for hearing; and by encouraging a weakness of the courts for making law rather than applying it. When courts make law rather than apply it, no one can know where they stand until the highest court has spoken. Parties will not accept the law and settle, but will be encouraged to think that if they push hard enough, they can get whatever they want from the courts. The political role of the courts has obscured their basic and essential role because, apart from criminal cases, most court cases receiving public attention are political. Even judges have become frustrated about the role of the courts. Consider Rosalie Abella of the Ontario Court of Appeal, the most popular choice to succeed John Sopinka to the Supreme Court. In a 1991 address that she gave when she was chairman of the Ontario Law Reform Commission, she distinguished between public and private cases and called for more “expansive” hearing of “Constitutional questions, issues involving new jurisprudence” - in other words, political cases. For Abella these were Cadillac cases, as opposed to the mere Chevies that you or I might one day have to drive to court.
More Articles by John T. Pepall at John Pepall online.
The directors of the Canadian Justice Review Board come from various walks of life and occupations. We represent a broad range of Canadians who are concerned about the state of the justice system.