Sustaining a Relationship : Insights from Canada on Linking the Government and Third Sector (Working Paper 1)

The embedding of third sector organisations in the policy world is fraught with tensions. Accountability and autonomy become oppositional forces causing an uneasy relationship. Government agencies are concerned that their equity and efficiency goals and objectives be met when they enter partnerships with the third sector for the delivery of programs and services. Third sector agencies question the impact of accountability mechanisms on their independence and identities. Even if the relationship between government and third sector agencies seems to be based on cooperation, concerns about cooptation (for nonprofits) and capturing (for governments) may linger calling the legitimacy of the partnership into question. Two means of improving the relationship between the governing and third sectors have been proposed recently in Canada by the Panel on Accountability and Governance in the Voluntary Sector (PAGVS) and the Joint Tables sponsored by the Voluntary Sector Task Force (VSTF). The two endeavours represent a historic undertaking in Canada aimed at improving and facilitating the relationship between the federal government and the nonprofit sector. The reports borrow on other country models but offer new insights into mediating the relationship, including new models for a regulatory body and a charity compact for Canada. Do these recommendations adequately address concerns of autonomy, accountability and cooptation or capturing? The Canadian reports do offer new insights into resolving the four tensions inherent in partnerships between the governing and third sector but also raise important questions about the nature of these relationships and the evolution of democracy within the Canadian political system.

Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System

This work examines independence in the Canadian justice system using an approach adapted from new legal realist scholarship called ‘dynamic realism’. This approach proposes that issues in law must be considered in relation to their recursive and simultaneous development with historic, social and political events. Such events describe ‘law in action’ and more holistically demonstrate principles like independence, rule of law and access to justice. My dynamic realist analysis of independence in the justice system employs a range methodological tools and approaches from the social sciences, including: historical and historiographical study; public administrative; policy and institutional analysis; an empirical component; as well as constitutional, statutory interpretation and jurisprudential analysis. In my view, principles like independence represent aspirational ideals in law which can be better understood by examining how they manifest in legal culture and in the legal system. This examination focuses on the principle and practice of independence for both lawyers and judges in the justice system, but highlights the independence of the Bar. It considers the inter-relation between lawyer independence and the ongoing refinement of judicial independence in Canadian law. It also considers both independence of the Bar and the Judiciary in the context of the administration of justice, and practically illustrates the interaction between these principles through a case study of a specific aspect of the court system. This work also focuses on recent developments in the principle of Bar independence and its relation to an emerging school of professionalism scholarship in Canada. The work concludes by describing the principle of independence as both conditional and dynamic, but rooted in a unitary concept for both lawyers and judges. In short, independence can be defined as impartiality, neutrality and autonomy of legal decision-makers in the justice system to apply, protect and improve the law for what has become its primary normative purpose: facilitating access to justice. While both independence of the Bar and the Judiciary are required to support access to independent courts, some recent developments suggest the practical interactions between independence and access need to be the subject of further research, to better account for both the principles and the practicalities of the Canadian justice system.