THE COURTS

Vol. 16 No. 9 (September, 2006) pp.679-681

THE COURTS, by Ian Greene. Vancouver: University of British Columbia Press, 2006. 200pp. Cloth, $65.00. ISBN: 0774811846. Paper (2007). $22.95. ISBN: 0774811854.

Reviewed by David Erdos, Visiting Researcher, Victoria University of Wellington. Email: derdos [at] alumni.princeton.edu.

Whether positive or critical, recent politically-focused normative studies of the legal and judicial process in Canada have, with few exceptions, one factor in common. Their overwhelmingly dominant focus is on the policy-making role of the Canadian judiciary under the Charter of Rights (1982). Within this genre, many vital and important contributions to the literature have been made. In particular, one thinks of CHARTER CONFLICTS (Hiebert 2002) and THE CHARTER REVOLUTION AND THE COURT PARTY (Morton and Knopff 2000). Nevertheless, as Ian Greene points out, notwithstanding the importance of the judiciary’s policy-making role (especially under the Charter), the principal role of the Court system is to “resol[ve] serious disputes according to law as expeditiously and impartially as possible” (p.5). One unintended side-effect of the rather narrow focus of recent Court literature in Canada has been that a number of politically important issues related to this core function have been somewhat overlooked. The key strength of this work is that it helpfully refocuses the debate by assessing whether the Courts are living up to reasonable democratic expectations in relation to this “decision-making” function with as much detail and thoroughness as it carries out this task in relation to the Court’s somewhat sexier “policy-making” function.

The work is part of the Canadian Democratic Audit series edited by William Cross at Mount Allison University. This series has, in turn, produced nine works evaluating the core institutions of Canadian democracy such as legislatures, cabinets, federalism and the electoral system together with a tenth synthetic work providing some overall conclusions. Like the others, this book on the Courts utilizes three core “democratic bench-marks,” namely, public participation, inclusiveness and responsiveness, to assess effectiveness of the institution and to suggest possible improvements. In addition to considering the democratic justifiability of current judicial policy-making, a wide-range of other issues are considered, including the ease of access of different groups (e.g. women, immigrants, aboriginals) to the legal profession, systems of judicial discipline, avenues for public complaint for poor service, the practical operation of the jury system and threats to judicial independence.

The book is easy to digest and comprehend due, in part, to its well planned structure. After providing an introduction to Canada’s court system, Greene’s chapters examine, in turn, the courts in relation to public participation, inclusiveness and institutional and decision-making responsiveness criteria. Each of these chapters provides a [*680] systematic and comprehensive overview of the issues involved and ends with a helpful bullet-point list of strengths and weaknesses of the Court system in relation to the particular criteria under examination. During the course of the work, some fundamental difficulties relating to the Court’s capacity to provide a democratically acceptable service are brought to light. To take two examples, interesting analysis is provided on the reality of long delays in much of the judicial process and the extremely modest extent of redress in relation to clear judicial misbehavior, despite the creation of the Canadian Judicial Council and cognate provincial bodies from the 1970s onwards. The final chapter draws the analysis together and provides a synopsis of Greene’s various policy prescriptions. Although most of these prescriptions (and much of the overall analysis) is clearly written from a moderately liberal point of view, Greene is usually careful to cite and consider a range of other perspectives from both the left and right. Thus, although he considers that the Canadian judiciary’s policy-making has, on balance, “advanced rather than retarded Canadian democracy” (p.162), Greene also cites and assesses contrary arguments advanced by Michael Mandel, Ted Morton and Rainer Knopff, among others.

The main intended audience for this book appears to be a policy community interested in developing concrete and practical proposals for possible reform. A wider aim of the work (and the Canadian Democratic Audit in general) is also to foster a debate on these matters amongst a wider public. It is certainly the case that the work is written in a style accessible enough for this to be possible. Within a University context, this well-referenced book should appeal to anyone wishing to gain an overview of the current debates surrounding the Canadian court system. It might also be helpful in a public policy course which includes assessment of the role of the Courts in the democratic system. In this context, the list of discussion questions included at the back of the book may be particularly useful.

To a large extent the main drawbacks of the work are intimately connected with these strengths. Greene skillfully covers a great range of issues within only 183 small pages of text. However, although it is full of many interesting facts and arguments, this is clearly ultimately a work of synthesis rather than a piece of original research. Moreover, many of the issues discussed are ultimately left hanging. For example, near the beginning of chapter four, Greene cites some interesting judicial survey evidence suggesting that threats to judicial independence increased between the early 1980s and mid-1990s. By the end of the chapter, however, one feels that an explanation of these findings and its implications for judicial independence has not, in fact, been squarely addressed. To a large extent, this reality is a necessary outcome of the combined large scope and small size of the work. If either the scope or size were significantly altered, however, it is likely that appeal to the core constituency of series – the policy-making community – would be reduced. Nevertheless, a key resulting drawback for the academic community is that the [*681] work can, at best, only function as an initial starting-point for serious enquiry. Those wishing to delve more deeply into any particular issue in order to further a particular research interest will have to look elsewhere. As if to acknowledge this, Greene ends the book by providing an additional reading list pointing to primary research and in-depth analysis which have been published on the various important issues he considers.

REFERENCES:

Hiebert, Janet L. 2002. CHARTER CONFLICTS: WHAT IS PARLIAMENT'S ROLE? Montreal: McGill-Queen’s University Press.

Morton, F.L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Toronto: Broadview Press.

*************************************************