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Canada’s “system of surrogate justice”
Ellis recognizes that Canadians must turn to the administrative justice system for enforcement or vindication of their rights regarding various matters. However, the justice system of Canada is nonexistent. The system acts as a ‘placeholder’ for residents who need help. Ellis emphasizes that for a majority of Canadians who seek matters on legal issues, they only meet a system that is generally not known to them.
The nonexistent justice system of Canada has remained uncertain and a puzzle to academics, lawyers and even judges. The system has developed over the years due to an unplanned approach through which legislators have been able to create several statutes to protect important everyday rights and obligations. However, executive branch tribunals have been given responsibilities to adjudicate judicial functions rather than the courts.
Judicial functions
According to Ellis, critical rights-determining functions have ended in wrong departments, which do not have authorities to perform judicial functions. In an ideal situation, cabinet ministers should not perform judicial functions. However, the common practice in Canada is that many ministers and other public servants have been assigned a rights-determining function that meets the specification of a judicial function. The situation is bad because their rights-determining decisions could be final and cannot be appealed.
Judges should exercise judicial functions. Hence, questions arise whether public servants and ministers should perform judicial functions, which are not compatible with their roles. In this respect, Ellis notes that such public servants should avoid judicial roles and stick to their non-judicial functions. He raises matters of propriety about ethics and discretion of such judicial functions. Hence, public servants and ministers should not participate in judicial activities. Moreover, from a constitutional dimension, one would question the role of such civil servants in making final decisions on rights-determining matters.
Changes to the administrative systems
The Canadian justice system requires restructuring because it reflects injustice. Ellis shows that legislatures assign judicial functions to ministers, public servants, and tribunals. These are amorphous bodies and surrogate courts, which are unknown to the public and in the administration of justice, but their decisions are life-altering for many Canadians.
Ellis points out that the executive administrative justice system only exists as a name. Moreover, judicial tribunals are neither independent nor impartial and their levels of competence can be difficult to determine.
Therefore, change is necessary to ensure that justice assumes it rightful place and role in Canada.
Ellis’ conclusion
Ellis asserts that the roles of judicial tribunals are necessary. He also shows how such roles and certain decisions could have profound impacts on the lives of individuals. However, Ellis notes that such judicial tribunals lack independence from political interference.
It is imperative to recognize that Ellis lays bare the current state of the justice system in Canada and offers alternatives on how to reform the system for productive outcomes.
Although not all might support Ellis’ ideas of an ideal system of justice, one cannot refute his assertion that impacts of the current system could be detrimental and profound to the public. Therefore, it is imperative to assert the integrity and administration of justice to protect the public from arbitrary decisions made by amorphous bodies. In this regard, the law should stop public servants and ministers from performing judicial functions. However, such tribunals should only undertake judicial functions if they can guarantee independent processes, remain objective and impartial with regard to the principle of judicial independence.
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