Taking a broad approach to the meaning of “access to justice”, to include not only physical and financial access to courts and tribunals, and capacity to enforce or establish rights, but also the use of the legal system to claim a share in the “goods” and realization of the values that are said to characterize Canadian society, the author analyzes several decisions of the Supreme Court of Canada in 2007 that relate to access to justice in different ways. Christie and Little Sisters (No. 2) involve the question of financial barriers to accessing the legal system; the result in both cases is inconsistent with the Court’s aspirational statements about the importance of access to justice. Both cases also illustrate the significance of how the case is framed. Alliance for Marriage and Family v. A. (A.) confirms that “access to justice” does mean that “outsiders” cannot prolong a matter, at least in litigation between private parties; the author queries, however, whether there would be the same result had the case been framed as raising constitutional, public interest issues. In Bruker v. Marcovitz, the majority’s decision treats religion as the incidental subject matter of the contract at issue, the reby ensuring that Ms Bruker is able to enforce her claim in the courts; the dissent seeks to maintain the separation between religion and the secular courts by making the religious matter the core of the case dispute. The author suggests that the majority’s decision may have less value than the dissent’s in establishing the parameters of access to substantive justice for future cases that explicitly or implicitly pose a tension between equality and freedom of religion. The 2007 jurisprudence generally does not lead to an increase in access to justice.
"Supreme Court of Canada Constitutional Cases 2007: Defining Access to Justice."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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