Constitutional Accommodation and the Rule(s) of Courts

Authors

  • Lorne Sossin

DOI:

https://doi.org/10.29173/alr1280

Abstract

Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation. The three existing models of ride-making are court-led, where a majority of government officials, and collaborative, which lacks an evident majority of either. These rule-making bodies do not control court fees, the executive does, but in a system with any model, the judiciary always has the final say in interpreting and implementing the rules or fees of the court. This creates an unavoidable conflict between the government and the judiciary. The relevant principles of judicial independence in this conflict are the inherent powers of the courts to control all aspects of judicial function, as well as the necessity of accessibility to the courts. The integrity of the administration of justice requires a constitutional compromise that respects these principles and creates an interdependent balance between the judiciary and Parliament. An independent commission composed of non-judicial, non-governmental mediators where disputes between the courts and the governments may be brought would support this requirement. Such a commission would instill the necessary1 confidence in both parties, and would facilitate an effective collaborative guardianship over the administration of court rules and fees while preserving the constitutional principles. Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation.

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