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GS/Law 6761Fall 2007
Instructor: Ian Greene
Preliminary MattersIntroductionsOrigin of this course: Justice John EvansEvaluationPresentations
My own backgroundGrew up in a small Alberta town (population
1000)Attended the U of Alberta (Edmonton), and
did a student exchange to Bishop’s University (Sherbrooke, Quebec) during 2nd year
Majored in political scienceWanted to be a lawyer BUT got a scholarship for
an MA at U of TMA in Political Science at University of Toronto:
loved political science study of courts
Post MATraveled around the world for 2 years: New
Zealand, Australia, Indonesia, Singapore, Malaysia, Thailand, Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey, Europe
Accepted to law school, but decided to do a Ph.D. first. Studied the causes of unreasonable delay in courtsTheory: we didn’t understand the proper relationship
between judicial independence and ministerial accountability
What I found: friction, misunderstanding, and “passing the buck” amongst judges, lawyers, crown attorneys and court administrators is the major cause of unreasonable delay
British Columbia & AlbertaWorked for Alberta
gov’t for 4 yearsAssistant to a cabinet
minister 1 yearMiddle manager in
Alberta Social Services 3 years
First teaching job: College of the Rockies in Columbia Valley, BC
My family
York University YearsResearch on judicial behaviour & ethical
politicsThe Courts (2007)A Question of Ethics (2006)Honest Politics (1998)Final Appeal (1998)Judges & Judging (1991)The Charter of Rights (1988)
TeachingFor next 4 years will teach mostly graduate
coursesDirector of Master of Public Policy,
Administration & Law ProgramCo-Coordinator of part-time LLM in
Administrative LaMaster of McLaughlin College
You’re invited to College events – eg. Joe Clark speaking on Thursday, November 15, 5 p.m., 014 McLaughlin
A.V. DiceyAlbert Venn Dicey - British jurist (1835-1922)Oxford graduate & later professor & Oxford &
London School of Economics Introduction to the Study of the Law of the
Constitution – 1885Refined idea of “unwritten constitution”
Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention) Responsible government: cabinet responsible to
legislature, cabinet solidarity, ministerial accountability
Basic principles of British constitution:
Parliamentary (legislative) SovereigntyDistinct from U.S. system of separation of powers
The rule of law (law applies equally to everyone unless exceptions written into the law)No need for a British bill of rights: judges who
apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rights
Judicial independence Parliamentary supremacy means that the legislature determines
the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701
Act of SettlementSuperior court judges appointed “during good
behaviour” (security of tenure), and their salaries are “established” by Parliament (not the cabinet)
(In Canada, Valente (1985): -security of tenure (judges can’t be removed except as recommended by an inquiry that conducts a fair hearing)-salaries must be set by legislature and high enough to discourage bribery-judges control those aspects of court administration that directly affect adjudication
Parliamentary Supremacy vs. Separation of PowersU.S. constitution of 1787 recognizes “separation
of powers,” not legislative supremacy. Why?Fathers of U.S. constitution read Montesquieu
(~1750) who argued that the British protected their liberty through a separation of powers. But British government was evolving toward parliamentary supremacy and responsible government
Dicey argued that separation of powers meant judicial supremacy. British unwritten constitution infinitely superior.
British system vs. FrenchCommon law system ensures that all courts
and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law.
The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power.
Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system
Alan Cairns“The past and future of the Canadian
administrative state.” Yong WangAlan Cairns – one of Canada’s best-known political
scientistsBorn in OntarioB.A. in 1953 and M.A. degree 1957 from U of
TorontoMember of the Department of Political Science at
University of British Columbia from 1960 -- 1995 and served as head of the department from 1973 to 1980.
Evans, Janisch, Mullan & RiskAdministrative Law text, IntroductionRaj Sharma
Martin LoughlinPublic Law and Political TheoryGuy Brownlee
Prof. of Public Law, London School of Economics
Alberta provincial lawsuit settledIan GreeneAssured Income for the Severely
Handicapped Administrator in Southern Alberta, 1983-85
Rule of law issue
John LockeThe Second Treatise on Civil Government
[1690]Judy Verbeeten
John Stuart Mill (1806-1873)On Liberty [1859] (worked for Br East India
Co until 1858)Trudy McCormick
Peter HoggConstitutional Law of CanadaAlia Ahmed
Hutchinson & Monahan“Democracy & the Rule of Law”Hillary Cameron
Greene, Baar, McCormick, Szablowski, ThomasFinal Appeal (1998)
Ipperwash InquiryLeanne Briscoe
Stephen BrooksKarey Lunau
Professor, U of Windsor; B.A., M.A. (Windsor), Ph.D. (Carleton)
Harry Arthurs“Without the Law: Administrative Justice and
Legal Pluralism in 19th Century England”Ian Greene
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