Judicial Practice in Action: Court Reform and Responsive Judges in Canada

Abstract

This chapter presents two examples of responsive judging outside of the courtroom. The chapter takes a socio-legal approach to the study of responsive judging, outlining the activities and practices of judges and the work that judges do on a day-to-day basis, from the mundane rule-making activities to the both visible and hidden work on architectural design and courthouse construction. The two examples feature judges in Ontario, Canada responding to critiques of formal legal institutions by working on court reform outside of, or in addition to, their regular case-work. First, judges in Ontario responded to calls for “faster, cheaper, and better” alternatives to trial by incorporating non-adversarial processes and procedures within the life of a case. Second, Ontario judges responded to the over-incarceration of Aboriginal offenders by bringing culturally appropriate procedures into the criminal trial and building a physical space for Aboriginal justice within the courthouse. For better or worse, judges have responded to a variety of challenges by innovating, adapting, and reforming the practices and operation of activities at court, and specifically by incorporating “alternative dispute resolution” (“ADR”) mechanisms into conventional court procedures. In presenting these examples of judicial responsiveness, this chapter provokes legal scholars to reflect on the various sites of judicial law-making, and, concurrently the various sites of the intermingling of law and politics.

Keywords: Law and Society, Judicial Politics, Dispute Resolution, Mandatory Mediation, Aboriginal Law

JEL Classification: K00, K4, K40, K41