Access to Justice, Looking for a Constitutional Home: Implications for the Administrative Legal System

Abstract

Access to justice has long been in the constitutional real estate market, in search of a home within Canada’s constitutional framework. To put it differently, access to justice has been couch surfing through the constitutional jurisprudence and appears to be concurrently residing within two different constitutional principles. Access to justice has been referred to as a component of the rule of law. It has also been framed in terms of judicial independence and section 96 of the Constitution Act, 1867. In some cases, the right to access justice has even been construed as a vague combination of both the rule of law and judicial independence. Although these links to constitutional principles elevate the status of access to justice to that of a legal right, the precise source of that right remains unclear. Yet it is important for access to justice to find a clear and permanent constitutional home. Until access to justice is clearly lodged in the constitution, any attempt to define its content will remain unsatisfying and will make further jurisprudence in this area increasingly difficult to predict. Indeed, it has become expedient to talk about practical solutions to the access problem, without worrying about whether those solutions are reflective of the underlying legal right itself. The lack of conceptual clarity may be of particular importance for the administrative justice system. This is because access to justice’s choice of constitutional home may influence the extent to which that legal right applies within administrative justice.The authors consider these issues in light of the Supreme Court of Canada’s recent decision in BC Trial Lawyers and the Court’s earlier jurisprudence linking it to the rule of law. They submit that a shift from the rule of law to section 96 creates the potential for access to justice constitutional obligations to arise for administrative tribunals as well as the courts. However, the access to justice features of the rule of law continue to provide important analytical considerations that should not be overshadowed by too narrow a focus on section 96 alone.