Spring time and the Rule of Law

The fragility of the Rule of Law is on display south of the border - what preventive measures does Canada need to consider?

Spring is on its way - the robins are chirping, yet we have wet snow/freezing rain on the way (or what the forecasters call “a wintry mix”). I have been preparing for an upcoming webinar on confidentiality in the hearing room - a practical look at the limits on open proceedings. It should be an interesting discussion.

Programming note: the Adjudicator’s Toolkit will be taking a short break and will be back on April 11.

Rule of Law watch - a modest proposal

…we don’t teach our citizens much if anything about the Rule of Law and we don’t encourage participation other than through jury service and our dwindling magistracy. The public are estranged and that is a democratic deficit. The court estate is a national disgrace: in part literally crumbling and more to the point not fit for purpose either from the perspective of those who work in it or the users and victims who have no choice but to be there. … Meanwhile, the impact of austerity and the change in people’s behaviours, as a consequence of the Covid pandemic, have had a serious impact on one of our foundational constitutional principles: access to justice. There are delays and backlogs that are antagonistic to justice. Case volumes are increasing and resolution rates in many jurisdictions are declining. Austerity without strategy brings price rationing which is the antithesis of access to justice.

The Rt Hon Sir Ernest Ryder, The High Sheriff of Oxfordshire Law Lecture, 2025 [emphasis added]

Sir Ernest Ryder spoke these words recently and asked who had the “courage to identify the problems and find empirically valid solutions” - he said that it should be academic and civic leaders “who have the experience and the knowledge to help our institutions flourish”. I agree with his proposal (discussed in more detail later) but disagree that any process to identify problems and solutions should be led by academic and civic leaders. We need members of the public and the users of the justice system to be driving the discussion, with the guidance of academics and civic leaders.

Ryder provides a working definition of the Rule of Law: “decision-making in accordance with a transparent, clear, consistent and comprehensible corpus of legislation and precedent that gives us predictability”.

The Rule of Law is more than the data that underpin disputes … It is more than the undoubtedly high-quality decisions of its judges in the common law tradition. It is more than the rational, codified determinations in the civil law tradition. It is more than the specialist administrative re-making of decisions in Tribunals. It is about the distribution and control of power between people and the impact of that on people.

Ryder notes that the degradation of institutions that are charged with looking after the Rule of Law has major implications for the health of political and social debate as well as community coherence: “If we allow the narrative to be damaged, it is not easy to repair”.

Ryder asks:

Wouldn’t it be good if someone had the over-arching non-political role of identifying to Parliament and Government unfairness that ought to be redressed. Someone who could bring together the conclusions of ombuds in relation to maladministration, the systemic unfairness uncovered by judges and the recommendations of inquiries that have been accepted but never acted upon. Someone who could identify solutions to delay, unintelligible process and, most importantly, circumstances where people are unequal before the law and have no access to justice.

Ryder suggests a university-based centre that would sustain the Rule of Law by “regenerating our institutions with innovative but principled ideas. A place that can have debates in depth from profoundly different perspectives and derive new ideas.”

I think universities have a role to play institutionally - universities are already sites for research and advocacy groups such the Canadian Forum on Civil Justice. But the promotion of the Rule of Law and its protection must involve the participants in the justice system - including judges, adjudicators, lawyers, and parties - as well as the general public.

My modest proposal is that - eventually - efforts to protect and enhance the Rule of Law must come primarily from citizens, not lawyers. That is because the Rule of Law is fundamentally designed to protect citizens - not lawyers. Lawyers, judges and adjudicators are, of course, both citizens and individuals with a vested interest in the Rule of Law. However, it is the vested interests of judges, adjudicators and lawyers that can obscure to the public the fundamental benefit of a robust, efficient and fair justice system.

We are seeing in our neighbour to the south the fragility of due process and the Rule of Law - it does not seem to matter much that lawyers and judges are raising the alarm, however. The root causes of this malaise are beyond the scope of this post, but the lack of understanding of the importance of the Rule of Law by the general public should be a worrying sign. That is the reason that we need to bring the public into the discussion - to educate them for leadership positions in the important task of protecting and promoting the Rule of Law.

Reminder: An Adjudicator’s Toolkit is downing tools for a week and will be back on April 11.

Links of interest

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