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.

A Restorative Theory of Criminal Justice

In this project, I defend a restorative theory of criminal justice. I argue that the response to criminal wrongdoing in a just society should take the form of an attempt to heal the damage done to the community resulting from crime. I argue that the moral responsibilities of wrongdoers as wrongdoers ought to provide the framework for how a just society should respond to crime. Following the work of R.A. Duff, I argue that wrongdoers incur second-order duties of moral recognition. Wrongdoers owe it to others to recognize their wrongdoing for what it is, i.e. wrongdoing, and to shoulder certain burdens in order to express their repentant recognition to others via a meaningful apology. In short, wrongdoers owe it to their victims and others in the community to make amends. What I will deny, however, is the now familiar claim in the restorative justice literature that restoring the normative relationships in the community damaged by criminal forms of wrongdoing requires retributive punishment. In my view, how we choose to express the judgement that wrongdoers are blameworthy should flow from an all things considered judgment that is neither reducible to the judgement that the wrongdoer is culpably responsible for wronging others, nor the judgement that the wrongdoer in some basic sense “deserves to suffer” (or “deserves punishment,” etc.).