Monday, January 5, 1998
COURTS SHOULD APPLY LAWS - NOT MAKE THEM
Rosalie Abella and her Cadillac
January 5, 1998, Ottawa Citizen
Frustration with the expense and delay involved in going to court seems to be leading people to lose sight of what courts are for. Across the political spectrum, mediation and alternative dispute resolution are promoted as the way round problems in the courts. They have become growth industries for lawyers and lay counsellors and at times the prospect of the privatisation of civil justice looms. Governments baulk at the cost of the administration of justice and judges grow tetchy with the tedium of hearing peoples' private disputes.
The courts, however, are not just there to provide a government subsidised dispute resolution service 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. 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.
What 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 might be sent to gaol 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 the 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 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 often 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 applying it, no one can know where they stand until the highest court has spoken. Parties will not accept the law and settle but are 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 confused about the role of the courts. Rosalie Abella of the Ontario Court of Appeal, the most popular choice to succeed John Sopinka on the Supreme Court of Canada, in an address she gave in 1991, when she was chairman of the Ontario Law Reform Commission, distinguished between public and private cases and called for more "expansive" hearing of "Constitutional questions, issues involving new jurisprudence", i. e. political cases. For Abella these were Cadillac cases, as opposed to the mere Chevies that you or I might have one day to drive to court.
Such a distinction is dangerous for the courts. The meanest dispute between neighbours must implicate the full authority of the state when brought to court. Conversely, whatever the political implications of a case, it is no occasion for being expansive. The facts must be found based on a painstaking review of the evidence and the law must be scrupulously applied and not made up from political considerations.
If we are ever to get prompt and economical justice from our courts they must be prepared to continue conscientiously in their essential work and not be put off by their mundane substance or distracted by political ambition and the lure of the big fancy cars.