December 1, 2005 Fraser Forum There is a battle for the judicial mind in Canada. Given the political po- tency of constitutional arguments, there is an enormous incentive for policy-seek- ing individuals and groups to influence interpretations of the Canadian Consti- tution and Charter of Rights and Free- doms in order to advance policy objectives. In pursuing this end, two complementary strategies have been adopted by interest groups. The first consists of constitutional litigation (see the articles by Carpay and Manfredi in this issue). The second, subtler strategy involves “influencing the influencers” through shaping the continuing educa- tion that judges receive after their appointments to the bench.
Interest groups use constitutional litigation to institutionalize policy prefer- ences that “allow individuals and groups to articulate their policy demands in the language of a particularly powerful con- stitutional claim that can be deployed continuously in future legal and political confrontations” (Manfredi, 1997). The constitutional litigation activities ofinterest groups have received much aca- demic attention to date (Morton and Allen, 2001; Brodie, 2002; Manfredi, 2004). However, the second strategy has received little if any academic attention to date.
The education of Canadian judges begins when they are appointed and continues throughout their time on the bench. The Canadian Judicial Institute, created by the federal parliament in 1971, has as its primary role to provide educational opportunities for judges by recommending which seminars and conferences should be designated for the reimbursement of judges’ expenses. These educational opportunities are largely provided by the National Judicial Institute (NJI). The NJI was established in 1988 as a non-profit body whose objective is to coordinate and deliver education to federally, provincially, and territorially appointed judges. The edu- cational programs that the NJI provides focus on substantive law, skills training, and social context issues. Unlike theother two areas of education, social context education is of particular concern because of its inherent susceptibility to capture by ideologically driven interests.
In regards to continuing judicial education in social context issues, the NJI aims to ensure “pervasive treatment of relevant ‘social context’ issues in all contexts in which judicial education occurs” (NJI, 2005). According to the NJI, without social context there can be no justice. The NJI believes that social context judicial education will produce more informed, and as a result, better judicial decision-making. However, what the NJI deems to be more informed judicial decision-making is debatable.
… social context education is of particular concern because of its inherent susceptibility to capture by ideologically driven interests.
In crafting its social context educational programs, the NJI uses its discretion to determine which legal academics they deem “familiar with this area of teaching and scholarship” (Swinton, 1996, p. 43). At the same time, the NJI makes it a priority “to include those who can make necessary links to the appropriate communities and, therefore, provide important perspective and input.” The NJI strategy is the “identification of those who can facilitate the educational process [which] requires outreach to appropriate groups…” (Swinton, 1996, pp. 43-44).
￼￼￼￼￼￼According to the NJI, the National Advisory Committee on the Status of Women, the Women’s Legal Education and Action Fund (LEAF), the DisAbled Women’s Network, or Status of Women Canada are appropriate gauges of social context in relation to gender issues, B’nai Brith or the Canadian Ethnocultural Council should be consulted on race and ethnicity matters, while the Assembly of First Nations and the Native Women’s Association of Canada should speak for aboriginal concerns.
For the NJI, these contacts serve two purposes, namely that, “they will build an information base of ideas about program design, identifying important issues and providing useful resource material; and they will also help identify people who may aid the educational objective by serving as speakers or members of program groups” (Swinton, 1996, p. 44).
None of this would be of concern if the limited NJI material made public included, for example, outreach by the NJI to REAL Women, to balance the views provided by LEAF. REAL Women, a self-described alternative women’s movement, is an organization known to take positions opposite to LEAF. Again, NJI material that also included recommended readings of conservative legal commentary by scholars such as Ted Morton and Ian Hunter, and social policy commentary by economists such as Chris Sarlo on basic needs poverty, for example, rather than the relative views of poverty provided by groups such as the DisAbled Women’s Network, would not raise any suspicions because it would demonstrate a balance of perspectives. The material available showed no such balance.
Unfortunately, the pre-selected social context educational materials made available for public review are limited to the Judges in the 21st Century binder for a Court of Queen’s Bench of Alberta judicial education seminar and another binder on aboriginal law.1 This makes it difficult to ease concern about bias, intentional or otherwise. Indeed, the publicly available evidence points to bias in the continuing education judges receive publicly available evidence points to bias in the continuing education judges receive after their appointment to the bench. Undoubtedly, this area is ripe for future research.
In the end, “Rights on paper mean nothing unless the courts correctly interpret their scope and application” (Morton and Allen, 2002, p. 78). According to Christopher Manfredi: Favourable legal rules, whether found in statutes, the common law, or constitutions, are among the most valuable resources that interest groups can possess, since those rules can preserve previous political victories and provide an advantage in subsequent political struggles. Consequently, groups have a strong incentive not only to defend their legal interests tactically, but to engage in the strategic acquisition and mobilization of legal resources to advance their policy agendas. (Manfredi, 2000, pp. 46-47)
It appears that part of the mobilization of legal resources to advance policy agendas may be their involvement in the development and delivery of continuing legal education courses for Canada’s judiciary. Given that Canadian courts have taken on an important political and policy-making role, the impartiality of bodies such as the NJI needs to come under heightened scrutiny.