As 2012 comes to an end, it is time to look back at the year that was. The Rule of Law Index for 2012-13 was recently released and although Canada remains near the top of the list, there are some worrying signs.
The World Justice Project defines the rule of law as a system in which the following four universal principles are upheld:
I. The government, its officials and agents are accountable under the law.
II. The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
III. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
IV. Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The Rule of Law Index focuses on the following dimensions:
- • Limited government powers
- • Absence of corruption
- • Order and security
- • Fundamental rights
- • Open government
- • Regulatory enforcement
- • Civil justice
- • Criminal justice
- • Informal justice
Information on Canada’s performance was gathered from about 40 Canadian academics and practicing lawyers from across the country.
Canada scores well in most areas:
Canada performs well in all eight dimensions of the rule of law. The government is accountable (ranking fifteenth), corruption is minimal (ranking twelfth) and the country generally observes fundamental rights (ranking eighteenth), although discrimination against immigrants and the poor is a source of concern. The country is relatively safe from crime, civil courts are accessible and independent, and the criminal justice system is effective in bringing offenders to justice. However, delays in court processes are perceived to be a problem.
I will focus on Canada’s performance in civil justice. This factor measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system, including mediation and arbitration systems.
Effective civil justice requires a system that is:
- • accessible
- • affordable
- • effective
- • impartial
- • culturally competent
Accessibility is broadly defined as including:
- • general awareness of available remedies
- • availability and affordability of legal advice and representation
- • absence of procedural hurdles, linguistic or physical barriers and other impediments
Impartiality includes:
- • absence of arbitrary or irrational distinctions based on social or economic status and other forms of bias
- • decisions that are free of improper influence by public officials or private interests
Effective civil justice also requires the fair and effective conduct of proceedings and enforcement of judgments, without unreasonable delay.
The graphic overview of Canada’s position compared to other countries in the region and by income level (at page 74 of the report), shows that we are in the middle of the pack on most areas. We perform better than most on the measure of access to ADR processes and in the efficiency of those processes. Where we are lagging is in access to the courts (“civil justice is not subject to unreasonable delays”).
This is not news. Freshly-minted Supreme Court Justice Richard Wagner recently highlighted the concerns about access to justice in a media interview. He proposed a national summit between lawmakers and the judiciary to discuss ways to make the justice system more accessible to ordinary Canadians.
In short, we got a good report card with some areas identified for improvement. Now we need an action plan for improving that performance. Justice Wagner’s suggestion of a summit has some merit, as long as it is used to identify solutions.