Access to Justice, Looking for a Constitutional Home

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Access to Justice Constitutional Law

Notes

appears to be concurrently residing within two different constitutional principles. Access to justice has been referred to as a component of the rule of law. 2 It has also been framed in terms of judicial independence and section 96

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choices about access to justice and its ultimate constitutional home may influence the extent to which that legal right applies within administrative justice

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rule of law-based right to access to justice will be largely defined by legislative actors, with no constitutional basis to override any statutory measures (including, for example, fees and processes)

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scarcely any basis to hold administrative tribunals constitutionally accountable for ensuring that their own processes are accessible

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may “simply give up on justice.”

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tendency to invoke the rule of law “as a mere rhetorical device

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The rule of law has been described as “a fundamental postulate of our constitutional structure” 17 and as a notion that is “implicit in the very nature of a Constitution.”

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tension between how the concept was historically viewed under England’s unwritten constitutional system 20 and how it has been interpreted within Canada’s written constitution

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rule of law requires the creation and maintenance of an actual order of positive laws

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rule of law requires that the exercise of public power be based in a legal rule

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legislative branch is only subject to the rule of law to the extent that it must follow law-making procedure

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rule of law did not supersede legislation so long as the law itself had been validly enacted

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does not prescribe how and by what means access to justice is to be achieved

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suggested that legislative action, however obstructive to accessible justice, was unassailable except on procedural grounds.

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access to justice was seen as a check on private and executive action, but it did not impose any obligations or constraints on lawmakers

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access to justice is now also being associated with another unwritten constitutional principle: judicial independence

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federal and provincial governments in Canada have not adequately addressed the access to justice crisis.

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Absent a constitutional requirement, there appears to be little political will to take serious measures to address the fact that justice has become inaccessible

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In its analysis of summary judgment powers, the Court stressed the importance of legal principles that are both fair and proportionate

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“Although the bare words of s. 96 refer to the appointment of judges, its broader import is to guarantee the core jurisdiction of provincial superior courts[.]”

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hearing fees that prevent people from accessing the courts infringe on the core jurisdiction of the courts

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At what point does dispensing with user costs become a decision about the allocation of state resources?

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access to justice flows not from the rule of law, generally and as suggested in BCGEU, but rather from one of its discrete dimensions—the supremacy of the law

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