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Justiciability, Access to Justice and the Development of Constitutional Law in Canada

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant's duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter rights. The authors ultimately posit that the government should have a duty of restraint in using summary procedures to end public law litigation, and courts should be reluctant to permit the government to preclude such litigation aimed at advancing the evolution of the Charter from reaching hearings on the merits.