The Mandate

“How Do We Know What We Think We Know:  Facts in the Legal System"

We know that the effective pursuit of truth is a necessary condition of justice.  Fact finding is indeed central to all legal systems.  Legal consequences attach only after we contend with the question: 'what happened'?  Judges and juries in criminal courts answer this question every day - whether in a break and enter or a murder case.  They do it by applying the rules of evidence, knowing that those rules are how we determine whether a conviction or acquittal is just, or improper.  Because the stakes are high in criminal cases, facts are established through rules of evidence that, historically, were highly technical.  In the past 25 years, however, the Supreme Court of Canada has ushered in a set of revolutionary changes to the rules of evidence in several areas, including witness competence, privilege, hearsay and similar act evidence.  It has developed a “principled approach” designed to return evidence law to fundamental first principles while conforming to the normative commitments of the Charter.

The focus of the Court's attention has been criminal law - and rightly so, given the tragedy of wrongful convictions.  The academic commentary is similarly focused on the criminal context.  The criminal law home of the revolution may, however, make for a limited application elsewhere.  Administrative law tribunals, for example, have adapted and modified the strict rules of evidence over time, commensurate with the nature of the issues before them and the seriousness of the consequences at stake.  It is time to assess the impact of the evidence law jurisprudence across the legal system - from family law mediation, administrative hearings, motions to strike in civil cases, public inquiries and the truth and reconciliation commission.  How do decision makers in non-criminal areas grapple with the obligation to assess the need and reliability of the evidence, the cost of obtaining it, and the degree of probative value of the information?  How should evidence law be taught in law schools? Is the focus on criminal law appropriate?  It would also be interesting to consider the direction of evidence law in other jurisdictions, and to evaluate new theoretical models that may challenge some of the basic assumptions driving the reforms.

It is an exciting time in evidence law.  The recent evolution in the law of evidence is a vital topic for those interested in our legal system, whether a decision-maker, advocate, litigator, academic, teacher, student and or law-maker.  A conference on the theme of evidence law should attract a wide and diverse audience.  Addressing comparative and theoretical scholarship will be both innovative and interesting.

The Courts and Beyond: The Architecture of Justice in Transition

The administration of justice is changing:

• the relationship between the three branches of government continues to evolve;
• in recognition of pressing needs, (cost, delay, responsiveness) justice is increasingly being accessed in non-traditional ways, be it through the Courts or otherwise;
• administrative agencies and tribunals, as well as dispute resolution and consultative inquiry processes, are increasingly becoming alternatives or adjuncts to the Courts.

Terrorism, Law & Democracy: 10 Years After 9/11

In the decade since 9/11, Canadian law has changed in a number of notable ways to grapple with the threat of terrorism.  Many of these changes have been controversial, especially in the way in which they reconcile (or not) civil liberties and human rights with enhanced state power to combat terrorism.  At the same time, the last decade has been one of several public inquiries, investigating the actual practice of anti-terrorism by Canada’s security services.

Key questions arising from the 2011 conference include, at the broadest level, whether Canadian law has successfully preserved fundamental rights and values of substantive and procedural justice while at the same time contributing to anti-terrorism.  More specific issues include (but are not limited to):

• whether Canada has, relative to other democracies, neglected criminal law remedies in favour of administrative law approaches and the implications of such a strategy;
• whether Canadian approaches to review and oversight of activities conducted in the name of anti-terrorism are adequate to the new challenges associated with the post-9/11 environment;
• whether the globalization of anti-terrorism initiatives has created difficulties at the national level in the manner and way in which Canadian law grapples with terrorism;
• whether anti-terrorism initiatives have had a corrosive impact on the separation of powers between executive, legislature and judiciary by giving unusual primacy to the executive;
• and whether Canadian practice in the area of anti-terrorism law is consistent with best practices in other jurisdictions.

This conference comes almost 10 years after the CIAJ’s 2002 conference, “Terrorism, Law & Democracy: How is Canada changing following September 11.”

Sentencing and Corrections: Sentencing Theory Meets Practice

This theme focuses on what happens in the criminal justice system once a verdict of guilt is pronounced. It can encompass either one or two of the following areas of research: how sentences are imposed, and how sentences are served.

How sentences are imposed in Canada is a question that implicates some deep values around punishment and community. Possible research avenues would consider the tension between theories of rehabilitation, punishment and deterrence, and the empirical bases (if any) supporting these apaches. Sentencing also engages public opinion in interesting ways: the Criminal Code provides that a sentence should promote respect for the law, but judges must resist public pressure in sentencing to avoid empowering the "mob with a rope."

How sentences are served also says a great deal about the status of inmates within institutions and within society generally. As citizens, inmates have experienced and continue to experience restrictions on their rights to privacy, to counsel, to equal treatment, to medical treatment, and to religious freedom. Correctional officers, as well, occupy a fraught space and are not immune to discrimination on racial or gender bases (including sexual assault). The thin line between watcher and watched in the prison context creates a unique and complicated work environment.

This research theme should integrate with the more general theme of CIAJ's annual conference dealing with the broader topic of corrections in the Canadian criminal justice system. The conference would extend to cover, as an example, other matters such as the profile of corrections in Canada (who is incarcerated, for what types of offences, with how much time served, where, and at what cost), and corrections and youth (including a finer understanding of the nature of youth crime and its judicial handling).

The Evolving World of Legal Remedies

One of the fundamental aphorisms in the practice of law is that there is no right without a remedy. It reminds the legal community of the practical side of its work, and connects lofty legal principles to the real world of clients and the reasons that lead them to seek legal answers to their problems.

Despite their practical significance, remedies tend to receive less attention than the rights that animate them. They are perhaps too often dismissed as minor details at the conclusion of more important matters. However, at other times questions arise about the efficacy of traditional legal remedies and the remedial tail may appear to wag the substantive dog in potentially problematic ways.

This year's research theme takes the view that remedies are a thought-provoking and consequential area for study both in their own right, and as a location for investigating contemporary trends in law and society. The theme focuses on the evolving world of remedies and their significance in reshaping both the rights they enforce, and the role of courts and tribunals in adjudicating matters that come before them. It endeavours to understand new trends in the law of remedies, both within traditional adjudicatory forums such as courts and administrative tribunals, and with a view to their relationships to more diffuse remedy-making across public and private actors.

Avenues for exploration could include:

" Institutional competence: how well equipped are courts and tribunals to fashion remedies? How have changes in the functioning of courts and administrative agencies affected remedies as courts move into non-adjudicative terrain - through case management, mediation, rule-making, and quasi-managerial remedies - and many administrative agencies move to separate their adjudicative functions from their administrative, investigatory, educational and other functions?

" Institutional relationships: How do relationships between courts and other decision-making bodies play out with regard to remedies? In particular, how should remedial powers mesh with legislative action, and to what extent can courts restrain or require legislative action, particularly in terms of the cost or scope of remedial action?

" The remedial imagination: What is the scope for new remedial forms, for example "structural reform" remedies to engender meaningful change to especially deep or systematic problems? How do the challenges of enforcing rights affect the design of remedies, for example in domestic or cultural contexts where those involved may be reluctant to seek legal protection because of countervailing extra-legal pressures? What can we learn from alternative remedial models that focus on restorative justice, as opposed to corrective justice, in fashioning remedies?

Institutions and Reasonable Accommodation

This topic addresses the toleration of difference within Canadian communities (traditional and new, established and emerging), and the role of public institutions in mediating such disputes and, more controversially, taking positions on them. In several recent instances, demands for accommodation of practices or positions of groups within Canadian society have challenged other, more dominant or mainstream practices. A number of these situations involve a fairly direct confrontation between some of Canadians' most dearly held values, including Charter equality rights, diversity and multiculturalism, tolerance, and religious freedom. Recent flashpoints have included:

" Herouxville, Québec and "copycat" municipalities (where town council have issued wide-ranging rules for immigrants considering moving there, including bans on beating or burning women alive, veiling one's face, and children carrying symbolic weapons to school);

" Challenges to school boards' policies of giving extra time off to educators who celebrate Jewish or Muslim holidays;

" The case of Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6 (SCC 2006), which addressed the right of an orthodox Sikh child to carry a ceremonial kirpan (dagger) in a public school.

Equally noteworthy is the notion of accommodation in the aboriginal law context, as flowing from a fulsome understanding of the "duty to consult" on matters in which aboriginal title may be implicated (see Haida Nation v. BC, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v.BC, [2004] 3 S.C.R. 550).

While the examples above are recent, the tension they represent is persistent and we can expect further battles in the years ahead. The question of reasonable accommodation and institutions engages with some abiding realities about the Canadian state, going to its relationship to its so-called "founding peoples," its identity as multicultural, and the history of practical compromise that so often has characterised Canadians' relationships with each other.

The topic also raises challenging questions about the role of public institutions in responding to such issues. One of the real attractions to this topic is that it demands a focus beyond just courts, to include other public institutions such as legislatures, municipalities, administrative tribunals, and school boards. The topic highlights some of the limitations that these (enormously varied) public institutions face in responding to these difficult questions, including the limits on those institutions' abilities to fashion remedies that are perceived to be satisfactory and legitimate.

Public Justice? Private Justice? Community-based Justice?

Law and legal systems are deeply implicated in designing, building and sustaining communities. The intersection of community and notions of justice have challenged the contours of Canadian federalism with claims for the desirability of justice systems rooted in a particular community, whether religious, ethnic or linguistic. Canada has been recognized as a model in its legislative framework and advancement of the rule of law, yet, it is apparent that within our borders, the current justice system is not fully responsive to the needs of community, as evidenced by the recognition of Aboriginal peoples in self governing and justice initiatives, the pressure to address cultural diversity in the context of the administration of public statutes, and recent calls for alternative rules and enhancing the court diversion system for the Black community. Has the justice system failed to address the special needs of particular communities within Canada? Does recognition of multiple communities detract from developing a shared notion of justice? What makes the Québec Civil Code, which operates with common law all around it, important in sustaining Québec and what is its impact on notions of public justice? What is the place of religious law in our society and how does it mesh with broader public policy notions of equality and justice?

Private Justice – an Oxymoron?

Recently, growing privatization of dispute resolution and a shift away from the courts have raised new and important questions for the justice system. Does such a notion as private justice exist? How does binding private dispute resolution impact public laws and their enforcement? What is the impact on access to justice of private case law that has no precedential value and is often not in the public domain? Does timely and cost effective access to private dispute resolution offset the risk of disregarding fundamental principles of our public justice system, such as the rule of law? What are the implications for access to justice where people lack resources to access either public or private mechanisms? As economic and other relationships transcend borders, how do different models of public justice and private dispute resolution impact notions of community? Do private dispute resolution systems hinder the development of principles-based public law or are they efficient and necessary in our increasingly complex society?

Globally, law is constantly evolving, responding to international market and other pressures. Law is fashioning regional systems that cross borders, language and culture in their conceptualization and implementation of new statutes. At the heart of these changes are notions of both community and law and how they intersect, at the local, regional, national and international level. How we address all these questions will inform how we think about notions of public justice and private justice.

Sustainable Development and the Law: People – Environment – Culture

There is a growing awareness that more effective measures are needed to ensure a sustainable society, including protection of the environment, citizens and the social and cultural differences that make Canada unique. Sustainable development, however, requires complex and sometimes difficult choices about the allocation of rights.

For example, do landowners have the right to use their property as they see fit, or is land held in stewardship for the benefit of a broader society? How does one find the appropriate balance between economic development and environmental protection, and does one require the compromise of the other? How does sustainable development affect the rights of ordinary citizens in terms of environmental, social and cultural issues? What impact has the increasingly complex common law in respect of aboriginal rights, land title and treaty rights had on Canada's sustainable future? Can advocacy go too far, such as when citizens who believe passionately that governments are not doing enough to protect the environment, break the law to promote their environmental protection goals? How is one to balance individual rights, which permeate our constitutional order, with collective rights that may be the key to sustainable development?

The courts, administrative agencies and tribunals are often the site of resolution of disputes between public and private interests in respect of sustainable development. Do our systems of regulatory invention, policy making and dispute resolution facilitate or prevent the development of integrated strategies to ensure sustainable development?

Technology, Privacy and Justice

The development and expanding application of new technologies has changed the world we live in. This phenomenon has also changed the operation of the justice system in many ways, from the use of DNA or surveillance camera evidence to establish guilt or innocence, to the instantaneous availability of court and tribunal decisions from around the world over the internet and the use of computerized case management systems. To some extent learning to make use of new technologies is a normal part of our adaptation to modern life, but in other respects the availability of new technologies offers us difficult choices about when and how to make use of new possibilities. How effective is our justice system's use of existing technology? What new technologies are on the horizon? How can we make wise choices about the acquisition of new technologies for use in the administration of justice? And how might the use of technology improve the public's access to the justice system?

At the same time, we must confront the possibility that the use of technology may have a negative impact on our society and our system of justice. For example, does making records that have traditionally been available to the public at a registry accessible through the internet have unacceptable consequences for privacy? Does the fact that we have increasingly sophisticated systems of electronic surveillance change the way we need to think about privacy rights, not just in the criminal justice system but in the civil justice system as well? To what extent does the law protect the privacy of employees and customers in the world of commerce, and what are the implications for businesses of our efforts to extend this protection? How effective are our efforts to ensure that individuals exercise control over the use of their personal information, and what impact do these efforts have on our ability to provide efficient service?

Governance of Professions, Corporations, Tribunals and Courts: Ethics, Responsibilty and Independance

Members of the public rely on the advice of professionals to safeguard their health, their economic well-being and sometimes even their liberty. Recently, the public has come to realize that, while it does not necessarily rely on corporations in the same sense, corporate actions can have a huge impact on those who work for and invest, directly or indirectly, in such organizations. We entrust tribunals and courts with the adjudication of our disputes with one another, with corporations and with our governments. In return, professionals, corporations, tribunals and courts hold out the promise of integrity, diligence, sound ethics and the utilization of specialized knowledge or expertise. When any of these elements is wanting, the consequences for individuals, and sometimes for the public as a whole, can be disastrous. Accordingly, we have searched for ways to govern professionals and corporations, and increasingly to govern the activities of tribunal members and judges, in order to provide members of the public with assurances that they will receive the quality of service and treatment that they deserve.

Ideally, of course, those who oversee professions, corporations, tribunals and courts would like to be able to address problems before they become serious, rather than dealing with the consequences after the fact. There are, however, significant challenges involved in doing this effectively. How can we provide the public with the assurances of quality that they want without unduly constraining the ability of professionals, corporations, tribunal members and judges to do their work effectively? How do we reconcile the demands of professionalism and ethics with the pressures of the marketplace? And how can we reconcile, on the one hand, the goals of professional, tribunal and judicial independence, and of corporate freedom, to act in the economic interest of shareholders, with, on the other hand, the public's need for accountability from these institutions?

Participatory Justice in a Global Economy: The New Rule of Law?

Globalization and the growth of free trade are forces that are impacting the social, cultural and economic reality of all communities. The rule of law underlies the structure of many of the countries, such as Canada, that participate in the global economy. While many people feel helpless in the face of these powerful forces, others see them as an opportunity for revitalizing action at a local or community level. Public interest has focused on such matters as the impact of globalization on culture, the mobility of labour, social security regimes, the environment, governmental power and human rights. Citizens have turned to their states seeking more security and protection of important social values in the face of the ever-dominating world-wide economy.

How is the development of international norms, standards and laws impacting on the development of national laws? What is the role of NGOs in developing such international standards and in securing their implementation at a national level? In what ways do international developments influence the judicial development of national legal standards? How do legal developments influence Canada's success in the global economy?