January 14, 2012

Ian Greene

Course expectationsIntroductionsElectronic resources: www.yorku.ca/igreeneIntroduction to public law and the Canadian

legal systemLunch at 12:00 noon, Senior Common Room

(140 McLaughlin College upstairs)Irvin Studin: guest lecturer around 3 pm

(we’ll get together with Section B)

Seminar Presentations AssignmentsSeminar participationPlagiarism & strategy to avoid it

Do your research, put your sources away, and write the first draft in your own words without looking at any of your sources. Then add footnotes indicating where ideas came from, and you may add up to four quotes for effect.

Assignments automatically checked by “turnitin,” which reports per centage of overlap with other sources (unless they are quoted and properly referenced), as well as the names of these sources.

NameHow did you get interested in public administration?How do you think your work (current or past) relates

to Canadian constitutional law?Graduate Diploma in Justice System Administration:

Take PPAL 6140 3.0 (for those not already in this year’s course, do it in your second year). This course is over and above MPPAL requirements

MRP has to be related to justice system administrationInternshipIf interested, discuss with me

www.yorku.ca/igreene: access to supplemental course readings, powerpoint presentations, audio files.

Moodle site (if constructed) will contain the above materials, and an on-line forum where you can exchange ideas and questions with each other. It will also be the place to file assignments. http://moodle.yorku.ca/

Excerpts from Greene’s The Charter of Rights (new edition) are posted on www.yorku.ca/igreene (optional supplemental reading).

I need your accurate email address

“Adjudication” is the dispute-resolution system used in courts. Characteristics?

Law applied to facts

Judge makes final decision

Reasons presented for judgment

How is adjudication different from arbitration and mediation?

Arbitration: standards agreed to by disputing parties applied, but not usually the whole body of law

Mediation: assistance in listening, understanding, and resolving (contract)

What are "legal persons?“ People, corporations, and

governments

What's the difference between negative and positive law?

Negative law: prohibited from certain behaviours (crim. law)

Positive law: positive incentive to change behaviour (tax deductions for donations to political parties)

Main sources of law: statute law (laws created by

legislatures) case law (created by judges)

Other (informal) sources: Ten Commandments, Magna Carta (1209), canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's & Monahan’s texts.

ratio decidendi; obiter dicta

common = general common law judges "find"

the law Parliamentary sovereignty

or legislative supremacy. Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone.

Constitutional conventions: “rules of political behaviour regarded by political actors as binding,” eg responsible gov’t

Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada.

NB & NS: 1758 Quebec: 1759: French

civil law. 1763: English public law

PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870.

Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792.

Imperial statutes remained in force until Statute of Westminster, 1931.

Development of common law courts and courts of equity

Preamble to BNA Act: implied Bill of Rights

Barristers and Solicitors Judicial Committee of the Privy

Council (JCPC); 1949 England: specialized appeal j's;

Canada: generalist appeal j's.

____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

common law stare decisis adversary system

circuit judges: “assizes.” Why don’t judges have to retire until 70 or 75? County and District courts now merged with superior

courts judicial independence: purpose to promote judicial

impartiality Valente decision (1985)

security of tenure financial security judicial control over adjudicative matters

judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)

Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) The only law that exists is the written law Good judges can always interpret the positive law correctly

Natural law (John Locke, John Rawls, Ronald Dworkin) There are “higher” laws that positive law ought to emulate. These

higher laws might be created by religion, logic, or ethical principles.

Judicial realism (Karl Llewellyn) Even if judges try to be impartial, the law can never be perfectly clear.

What makes judges decide the way they do? Canadian Judicial realism: Sidney Peck, Peter Russell, many current

scholars.

Critical Legal Theory a branch of “critical theory,” which examines

institutions from the perspective of class analysis.

Trial Courts:Improvisors (~10%)

no single process, but for most outcomes would be the same

Strict Formalists (~ 20%) particular process followed,

and always leads to the same conclusion.

Pragmatic formalists (~45%) particular process followed

(check list, shifting balance, water rising), but judges might decide differently.

Intuitivists (~25%) “gut feeling”

Appeal courts: Panel process different

Supreme Court of Canada a public law court (~100) leave to appeal (~600 apps)

Problems with justice system for some litigants and lawyers,

a game delay in client’s interest (about

half of trial lawyers) judges limited by adversary

system re control of caseflow Role of courts: dispute

resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles

Minor appeals heard by a single judge in a higher court (summary conviction appeals)

Major appeals heard by the provincial Court of Appeal

Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5)

The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3.

Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9.

per curiam (or per coram) vs. seriatim decisions

Stare decisis: a rigid form of doctrine of precedent

Ways around stare decisis: Distinguish Ratio is really obiter Per incuriam Emphasize different

majority opinion ignore

Hierarchy of courts determining application of stare decisis

SCC can choose not to follow precedent. Ont CA: policy: follow

What if conflicting precedents?

• Legislation:– primary legislation (enacted by a sovereign legislature, i.e. Parliament or

provincial legislature) – subordinate legislation (eg. Orders in Council, city bylaws, CRTC

regulations)– Both are law; subordinate must be cleary authorized by primary

• Manner and form requirements for judges to recognize a law

• Canada’s constitution:

• 1. Written parts a) Canada Act, 1982 (British statute that makes CA, 1982 law

and declares that no British statute will in future extend to Canada)

b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the Schedule to the Const. Act, 1982, most importantly the Constitution Act, 1867 (formerly called the BNA Act; contains division of powers), and the Constitution Act, 1982 (contains the Charter and the five amending formulas)

- Others: statutes & orders established new provinces, or amended the BNA Act.

You need to know the following parts for career purposes CONSTITUTION ACT, 1867 Ss. 56, 57 & 90:  reservation and disallowance 91.  the "preamble" to S.91 is the "POGG" clause (peace,

order and good government):  It shall be lawful for [Parliament] to make laws for the peace, order and good government of Canada, in relation to all matters NOT coming within the subject-matters assigned exclusively to the Provinces in S. 92.  For greater certainty, Parliament may make laws with regard to matters covered by the following list.  However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament's power.

 2.  Trade and Commerce 2A.  Unemployment insurance (added in 1940) 3.    Unlimited taxing powers (direct and indirect) 14.   Currency & coinage 15.   Banking 24.  Indians, and lands reserved for Indians 27.  The Criminal Law

92 - 2.  Direct taxation 10.  Local works and undertakings EXCEPT      a)  interprovincial railways & telegraphs      b)  international shipping      c)  any works that Parliament has declared are          within federal jurisdiction.  (“declaratory power”): eg. Grain elevators, local railways, canals, bridges, some mines, some factories. Used 470 times, but not since 1961. 13.  Property and civil rights (meaning private law) 14.  The administration of justice in the province, including      the establishment of all courts except the Supreme      Court of Canada and the Federal Court, and prosecution of criminal cases. 16.  All matters of a merely local or private nature.

92A (added in 1982).  The provinces can regulate non-renewable natural resources, including forestry and electrical energy, and can even regulate exports.  However, the federal government can also regulate exports in this area, and federal laws are paramount.

93.  The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation.

95.  Agriculture and Immigration are concurrent powers (both the feds and the provinces can legislate).  If there is a conflict, the federal legislation is paramount.

96.  The federal cabinet has the power to appoint all superior court judges in the provinces.

99.  Superior court judges cannot be removed except by joint address of the Senate and House of Commons.  Superior court judges hold office "during good behaviour" to the retirement age of 75 (to protect judicial independence).

100.  The salaries of superior court judges are set by Parliament, not by the cabinet (to protect judicial independence).

101. Parliament may establish a Supreme Court of Canada (which it did in 1875) and other courts to adjudicate federal laws other than the Criminal Code (eg. the Federal Court, which hears federal administrative law cases, and the Tax Court.)

• 109.  The provinces own the natural resources within them.

• 121. There shall be no customs duties or restrictions of trade between provinces.

• 132. Parliament can make any law to implement British Empire treaties, even if the law invades provincial jurisdiction.  However, after 1931 the courts interpreted this section to mean that provincial approval is required for any non-British Empire treaty which affects matters under provincial control.

• 133. English and French can be used in Parliament, and Canada's laws must be in both languages. Likewise, English or French may be used in Quebec's National Assembly, and Quebec's laws must be in both languages.  Either language may be used in the courts of Quebec, the Supreme Court of Canada, the Federal Court and the Tax Court.

Ss 1-34: The Charter of Rights (you don’t need to know the content of the Charter until November class)

S. 35: Aboriginal rightsS. 36: commitment to equalization

payments, so that poorer provices can provide adequate services.

1867: Canada independent re its internal affairsBalfour Declaration (1926) and Statute of

Westminster (1931): Canada recognized as an independent state re foreign relations

BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament. 1926-1981: many failed constitutional conferences.

Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree.

Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.

In Canada, there are 5 amending formulas for the constitution: Unanimity formula (Queen,

GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas

“some but not all” (eg. language within province, denominational school rights, change in prov. borders)

Provinces can amend own constitutions

Fed gov’t can amend its internal constitution

General amending formula (seven-fifty): the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop. Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or education.

38-40 & 42.  The 7-50 formula.  Most of the narrow constitution, including the Charter of Rights and the division of powers in ss. 91 and 92 of the C.A., 1867, can be amended with the agreement of seven provinces representing 50% of Canada's population and Parliament.  (That is, either Ontario or Quebec must be included.)  Up to 3 provinces could opt out of such an amendment.  If they opt out of an amendment which transfers educational or cultural matters to Ottawa, these provinces shall be compensated financially by Ottawa (Ottawa must give to the opting-out provinces what they are spending, per capita, on the opting-in provinces). 

There is a 3-year time limit which begins with the first resolution for amendment (which could be in any provincial legislature or Parliament).  No amendment may take effect according to this procedure until at least one year after the first resolution has passed (unless all governments have passed resolutions).

No province can opt out of an amendment affecting:

a)  proportionate representation of the provinces in     the House of Commons b & c)  the Senate d)  the Supreme Court of Canada e)  the extension of existing provinces north f)  establishment of new provinces

41.  The unanimity formula.  Unanimous agreement of all provincial legislatures and Parliament is required for amendments affecting:

a)  the Queen, Governor General and Lieutenant-Governors b)  the "Senate floor rule" (no province can have fewer MPs than Senators). c)  the use of English or French in S. 133 or the Charter d)  the composition of the Supreme Court, and e)  changes to the amending formulas.  

43.  The "some but not all" forumla:  Amendments which affect some but not all provinces need by approved only by the provincial legislatures affected and Parliament.

44.  Parliament may amend parts of the constitution that affect only Parliament.

45.  Legislatures may amend parts of their constitutions that affect only them.

U.S.: Congress proposes amendments (2/3 of both houses)

Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions

Comparison: U.S. constitution amended 17

times in 21 decades (rate .08/year)

Canadian constitution amended 32 times in 13 decades (.23 to 1982, and 9 after) (rate .24/year)

Canada’s constitution is more flexible

Major Can. amendments: 1940: unempl ins 1951: old age pensions 1964: old age pensions

broadened to include supplementary, survivors, disability (CPP)

1982: Charter and amending formulas

1983: S. 35.1: must be a constitutional conf including native peoples before native rights amended

1987-1998: 3 amendments to den school rts in Nfld

1997: den school rts Quebec 1993: equality of Fr & Eng in

New Brunswick

Canada 1927-1982: six failed

attempts to find a domestic amending formula1971 – Victoria charter

came close1982: success achieved

after SCC decision (discussed later in course)

Meech Lake & Charlottetown Accords (discussed later)

U.S.: 6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation)

Impact of court decisions: 1940, 1951 amendments in

Canada a reaction to court decisions

Civil war amendments in U.S. a reaction to court decisions

1918: SCUS decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to “pack” court. Court overruled 1918 decision.

United States Washington: cabinet

advisory & responsible to president

Jefferson: declared that U.S. could purchase new territory; never challenged in court

Political parties developed without constitutional amendment

Congress assumed vast powers over economy in 1930s and 1940s

Canada Feds assume they have power to

do something under POGG, or provinces assume they have power to do something under 92(13)

After 1995, fed legislation passed to prevent cabinet ministers from proposing amendments under 7-50 without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society

Clarity Act (2000) Was Dicey right that in the U.S.,

judges are supreme because they declare the constitution? Does Dicey’s analysis apply to Canada?

1. Constitutional conventions         -Rule of law         -Judicial independence         -Responsible government         -cabinet responsible to the legislature         -Ministerial accountability         -Cabinet solidarity         -Gov Gen and Lieut Gov’s must act according to the advice of the first minister, unless that advice is unconstitutional         -The leader of the group in H of C or prov leg that can command the support of the majority of members becomes first minister and chooses cabinet.  First minister tells GG or LG when to call election, unless another group can form gov’t

2. The ratio in the judicial decisions about the meaning of the constitution (eg. the ratio in the cases we’ll be studying in this course)

• Codification of laws– Coutume de Paris (1580)– Confusion after 1759– Royal Proclamation (1763) –

civil law abolished– Quebec Act 1774 – civil law

restored for private law– Codification: 1866: Civil Code

of Lower Canada (CCLC)– 1994: Civil Code of Quebec

(CCQ)

Deductive ReasoningInquisitorial System

(not in Quebec)Code, la doctrine,

precedent

Quebec courts:Court of Appeal

(s.96)Superior Court

(s.96)Court of Quebec

(provincial – s. 92(14))

Civil and common law approaches coming closer together

Stare decisis: a rigid form of doctrine of precedent

Ways around stare decisis: Distinguish Ratio is really obiter Per incuriam Emphasize different

majority opinion ignore

Hierarchy of courts determining application of stare decisis

SCC can choose not to follow precedent. Ont CA: policy: follow

What if conflicting precedents?

Natural Justice & Fairness

Natural Justice– Nemo judex in sua

causa– Audi alteram partem

Functions of Admin. Agencies:– Legislative– Administrative– Executive– Judicial or quasi-jud.

Judicial review– Jurisdictional– Abuse of power– Natural justice

• Jud or quasi-jud– Doctrine of fairness

Privative clauses– Can’t hide behind priv

clause if const issue, or patently unreasonable

Rules of Statutory Interpretation (1)

Why are rules needed?

Intent of legislature “reasonable person”

test 1.Plain meaning rule 2.“golden rule”: avoid

absurdity & inconsistency

3.What was the mischief & remedy?

Specific words help explain general ones nearby

Express inclusion of some items implies exclusion of items not mentioned

Aids:– Interpretation statutes– Definition sections of

statutes

Rules of Statutory Interpretation (2)

More Aids:– Context in statute– Other similar statutes– Legislative history

• Minimal weight. Why?

Books on rules of interpretation, & legal dictionaries

French & English text

International conventions & treaties (sometimes)

Preamble (but not marginal notes)

Headings (except in Ontario – excluded by statute)

Presumptions

Criminal law: in favour of accused

Taxation law: in favour of taxpayer

Against alteration of common law

Mens rea (guilty mind), unless express absolute liability

Against retroactivity

Against ousting jurisdiction of courts

For crown immunity (now mostly replaced by statutes allowing suits against crown)

Every word is deliberate Specific given precedence

over general More recent > older Leg. did not intend

drafting error (cts can correct)

1.  optimal freedom      J.S. Mill:  “harm” principle for limits 2.  procedural fairness when there are limits 3.  equality of application of rights and freedoms

Limits to rights: -some differences in ability (eg. qualifications for driver's license, or to become a doctor) -promote honesty (eg. limits to freedom of speech:  suits for defamation) -need to preserve public order -to deal with emergencies -resolve conflicts of rights -community-wide restrictions on moral behaviour (eg pornography)

Political theory of liberalism European Renaissance of

15th century Protestant reformation Glorious Revolution

(England: 1688) John Locke: Second

Treatise on Gov’t 1690 rule of law “one rule for

the Rich and Poor, for the Favourite at Court and the Country Man at Plough”

judicial indepencence

common law protections for individual freedom: strict attention to rule of

law: Entick v. Carrington 1765

mens rea crown must prove case

beyond reasonable doubt free confessions can’t be forced to self-

incriminate prerogative writs (habeas

corpus)

Development of democratic values growth of franchise

U.S. Bill of Rights Jefferson (declaration of

independence): “…all men are created equal [and] endowed by their Creator with certain unalienable rights [including] Life, Liberty and the pursuit of

Happiness.” (1776) To get 1787 constitution

ratified, state leaders insisted on a Bill of Rights; added in 1789 as first 10 amendments to 1787

constitution:

freedom of speech, press, assembly & religion

procedural rights: no unreasonable search or seizure, right not to testify against self, can’t be punished twice for same offence, due process safeguards, no cruel or unusual punishment

positive legal rights: speedy trial, jury trial for serious cases, reasonable bail, to bear arms, and to refuse accommodation to soldiers

Canada’s bilingual and bireligious heritage demands in 1864 for

guarantees of minority language and minority religious education rights prior to Confederation in 1867

“small bill of rights”: S. 133 of BNA Act: Eng or

Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905

S. 93: safeguards existing denominational school rights

Legislative Supremacy Preamble to BNA Act:

Canada’s constitution “similar in principle” to that of the U.K.

legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights

A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885)

human rights protected by common law

written constitution is too rigid; trust legislature

B.C.: disc leg against Orientals 1899: JCPC stuck down law

restricting employment of Orientals as ultra vires prov. Jurisdiction

1902: JCPC upheld denial of vote to Orientals - leg sup

Private suits by Blacks against pte disc: some succeeded, most didn’t because cts emphasized private right to contract

Sask: disc leg ag Orientals: upheld by SCC, 1914

“Persons” case: 1930 Alberta Press Case (1938)

impugned: package of Social Credit legislation: unanimously struck down

“Duff doctrine”: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions”

Treatment of Japanese Canadians during WWII: courts did not intervene

“Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to Can Civ Liberties Association

Duplessis era: SCC used division of powers to protect human rights Saumur, 1953: SCC struck

down Que City bylaw about littering, but aimed at Jehovah’s Witnesses

Switzman v. Elbling, 1957: SCC struck down Padlock Law because it trenched on Parl’s crim law jurisdiction

Roncarelli v. Duplessis, 1959: Roncarelli posted bail for JWs, and Duplessis cancelled his restaurant liquor license. (will discuss in more detail in October class)

Spearheaded by PM John Diefenbaker, and enacted in 1960

S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex

S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations.

“notwithstanding clause”

Robertson & Rosetanni v. the Queen (1963) impugned: fed. Lord’s Day

Act Ritchie (for majority):

Freedom of religion “has existed;” therefore no violation

Fr of Rel means an absence of disabilities, but govt’s can promote religious practices

Although Act as a religious purpose, the effect is purely secular

Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day

Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary

Drybones (1970) impugned: section of Indian

Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in NWT.

Drybones claimed equality before the law violated

Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality.

Ritchie adopts Cartwright’s reasoning from Rosetanni that notwithstanding clause means Bill of Rights is more than a rule of construction.

Cartwright dissented. Said he’d changed his mind since Rosetanni. It would be dangerous for the courts to usurp legislature’s role by deciding what statutes violate Bill of Rights.

Lavell & Bedard (1974) impugned: part of Indian

Act that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children.

Ritchie for majority (5-4): equality before the law, according to Dicey, means equality in the administration of the law.

If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians).

Bliss (1979): impugned: part of Un Ins

Act that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone.

Oil, Chem and Atomic Workers case (1963): SCC says it’s OK for BC gov’t to prohibit union political contributions if received from check-off.

1969: SCC upholds Alberta discriminatory legislation against Hutterites

Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods.

Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech

Beetz dismissed the Duff Doctrine

Laskin: strong dissent

SCC’s record under Bill of Rights led to support for idea of a constitutional Charter of Rights

February class: seven important Division of Powers cases decided by the Judicial Committee of the Privy Council or the Supreme Court of Canada, & Roncarelli v. Duplessis

March class: 12 important Charter of Rights cases decided by the Supreme Court of Canada