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The Prospects for Law Reform
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| gbuddy |
Posted: Mon May 15, 2006 5:29 am
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Joined: 07 Mar 2006 Posts: 77 Location: Vancouver |
I have often argued that justice in the workplace will never be achieved so long as we continue to tolerate a legal regime that is engineered to subvert justice. Our employment and labour relations regimes are separated from the other legal regimes so that they can operate according to standards that would not be tolerated in those other regimes (e.g. individual rights are virtually non-existent). That is not to say that justice is always well served outside of labour and employment. Sometimes it may be. Often it is not.
However, an increasingly informed public presents a real threat to the existing order and the judicial and legal communities are well aware of that fact. In this weekend's Vancouver Sun (on page C5) columnist Peter McKnight discussed a speech given by SCC Chief Justice Beverley McLachlin about the courts' role in dealing with "positive" and "natural" law, and "unwritten constitutional principles". A Google search on this last term turned up a very interesting find that I believe will be most helpful in arguing that the single greatest problem with the Canadian justice system is the lack of independence and impartiality of the adjudicators. That, I suggest, is why the mainstream press has been exhorting the federal government to do something about the archaic appointment process. Independence and impartiality are normative requirements of judicial adjudication. Independence and its corollary, the separation of powers, deal with the relationship of the judiciary both individually and institutionally with others, whereas impartiality refers to an unbiased state of mind. Although judicial independence is a distinct value from judicial impartiality, it is intended to be a cornerstone in promoting a reasonable public perception of impartiality. Judicial independence and impartiality are not absolute concepts, but principles that can be measured by degrees along a spectrum of possibilities. The question is whether an informed and reasonable person would perceive a tribunal as independent or impartial. The perfect ideal of judicial impartiality is unlikely to be attained in the human condition. Despite the difficulties inherent in striving for unattainable ideals, it is imperative that the judiciary possess a high level of independence and impartiality because adjudication is a form of third party conflict resolution, and a judge must be a genuine third party. Justice could not be done and public confidence in the process could not survive if the judges were allied with certain parties involved in disputes. Ultimately, the dominant purpose of judicial impartiality, independence, and separation of powers is to enhance the citizen's confidence that a judge will hear and decide a case free of governmental or private pressures in accordance with the law. This item is found on the website of the Canadian Forum on Civil Justice, which provides valuable insight into how the justice community is perceiving the challenges. To anyone interested in the prospects for real law reform, I highly recommend exploring this site. One of those challenges is that increasingly the judiciary and quasi-judiciary are facing "informed and reasonable" persons who are capable of understanding and articulating the truth. |
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| SharynS |
Posted: Mon May 15, 2006 11:41 pm
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Joined: 28 Jan 2006 Posts: 2940 Location: the 'puter |
Quote: is why the mainstream press has been exhorting the federal government to do something about the archaic appointment process. 
It's a long way from exhortion to fruition, no? The old saying talk is cheap comes to mind. Hell half the time I think any negative reference by one to the other is some kind of signal - like wearing "a toothpick behind the ear" to indicate you're bribe ready. Here's novel, I'm convinced that labour cba's contravene the charter on many fronts. From what I've gathered (and experienced to some extent), my individual rights are supposedly superceded. I have been unable to find a supreme court ruling which stated something to the effect that the system (which is what the labour regime is) cannot interfere with basic rights. Sorry I have no faith in the system, nor the keepers of the system, taking any kind of positive or corrective direction on itself without a whole lot of action. _________________ Free speech is the whole thing, the whole ball game. Free speech is life itself. - Salman Rushdie |
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