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